Ware v. Norman
| Decision Date | 03 December 2013 |
| Docket Number | Case No. 13-3180-CV-S-BP-P |
| Parties | KENNETH WARE, JR Petitioner, v. JEFF NORMAN, Respondent. |
| Court | U.S. District Court — Western District of Missouri |
KENNETH WARE, JR Petitioner,
v.
JEFF NORMAN, Respondent.
Case No. 13-3180-CV-S-BP-P
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION
Dated: December 3, 2013
Petitioner filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his 2009 convictions and sentence for robbery in the first degree and armed criminal action, which were entered in the Circuit Court of Christian County, Missouri. See State v. Ware, Case No. 04N8-CR01857-01 (Cir. Ct. of Christian County, Mo.) (jury verdict entered Jan. 12, 2009); Respondent's Exhibit A. Petitioner's conviction was affirmed on direct appeal by the Missouri Court of Appeals, Southern District. State v. Ware, Case No. SD29794, 326 S.W.3d 512 (Mo. Ct. App. 2010) (mandate issued Dec. 2, 2010); Respondent's Exhibit F. Petitioner's motion for post-conviction relief pursuant to Mo. Sup. Ct. R. 29.15 was denied by the Circuit Court of Christian County, Missouri, with an evidentiary hearing held February 17, 2012, see Ware v. State, Case No. 11CT-CC00063 (Cir. Ct. of Christian County, Mo.) (filed Jan. 26, 2011), and that judgment was affirmed by the Missouri Court of Appeals, Southern District. Ware v. State, SD32079 (Mo. Ct. App. Mar. 22, 2013) (unpublished opinion); Respondent's Exhibit L.
Petitioner states the following as grounds for relief: (1) the trial court erred in allowing the prosecution to exercise a peremptory strike against venireperson Miguel Montiel; (2) the trial court erred in denying petitioner's motion for judgment of acquittal filed at the close of the state's
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evidence; (3) the trial court erred in denying petitioner's motion for judgment of acquittal filed at the close of all evidence; (4) the trial court erred in denying petitioner's motion to exclude the testimony of Lunda Croney; (5) the trial court erred in allowing the verdict-directing instructions; (6) the trial court erred in excluding the testimony of John Gambon about the possibility of inaccuracy of eye witness testimony; (8)1 the trial court erred in denying petitioner's motion to quash the venire panel; (9) petitioner's trial counsel was ineffective for failing to file a motion in limine to exclude any testimony as to how police obtained his photograph for use in the photographic line-up.
Respondent has consolidated Grounds 2, 3, and 5 because they all challenge sufficiency of the evidence. Doc. No. 23, pp. 3. Respondent argues that petitioner's grounds for relief are without merit.
In his first ground for relief, petitioner asserts that the trial court erred in denying his objection to the peremptory strike of the only minority venireperson, Miguel Montiel, from the jury panel, thereby violating the Equal Protection Clause as explained in Batson v. Kentucky, 476 U.S. 79, 96 (1986). Petitioner further maintains that the trial court erred in overruling petitioner's objection to the prosecution's strike because the state failed to offer a legitimate and race-neutral explanation for peremptorily striking Mr. Montiel.
At the conclusion of voir dire, the state used a peremptory strike to remove venireperson Montiel from the jury, and petitioner's defense counsel challenged the strike under Batson because Mr. Montiel was Hispanic and was the only minority venireperson on the panel.
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Respondent's Exhibit A, pp. 135-36. In response, the state maintained that it struck Mr. Montiel from the jury because Mr. Montiel did not respond to any questions, because Mr. Montiel's appearance was "unkempt," and because Mr. Montiel marked his questionnaire showing that he had been convicted of a crime other than a traffic ticket. Respondent's Exhibit A, p. 136.
The United States Supreme Court held in Batson that a defendant may establish a prima facie case of purposeful discrimination in jury selection by demonstrating (1) that "he is a member of a cognizable racial group" and that "the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race;" and (2) that the facts and circumstances raise an inference that the prosecution employed peremptory strikes to exclude certain persons from the jury on the basis of race. Batson, 476 U.S. at 96.
If the defendant makes a prima facie case, the state bears the burden of providing a neutral reason for challenging jurors that are racial minorities. Id. at 97-98. The state's explanation, however, "need not justify a challenge for cause, Batson, 476 U.S. at 97, . . . or be 'persuasive, or even plausible.'" Hall v. Luebbers, 341 F.3d 706, 713 (8th Cir. 2003) (citations omitted). "Each step of the Batson inquiry involves a factual determination entitled to a presumption of correctness unless overcome by clear and convincing evidence." Hall v. Luebbers, 341 F.3d at 713.
Assuming that petitioner did present a prima facie case, the trial court found that the state proffered legitimate, race-neutral reasons for exercising a peremptory strike against venireperson Montiel. See Purkett v. Elem, 514 U.S. 765, 769 (1995) (the reasons the prosecutor asserted for striking the venireperson at issue were not characteristic of any particular race; therefore, they were "legitimate" in that they did not deny equal protection). Because the trial court is in the best position to observe the juror in question and to assess the prosecutor's demeanor and reasons for
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striking the juror, Weaver v. Bowersox, 241 F.3d 1024, 1027 (8th Cir. 2001), this Court may set aside the state court's findings regarding pretext, which involve questions of fact, only if they are clearly erroneous. Devoil-El v. Groose, 160 F.3d 1184, 1186 (8th Cir. 1998) (listing cases in which the prosecutor's reasons were sufficiently race-neutral to withstand a Batson challenge and finding that combination of characteristics was different in the non-stricken venirepersons than in the stricken venireperson), cert. denied, 525 U.S. 1163 (1999).
Petitioner asserts that the prosecution's reasons for striking venireperson Montiel were pretextual because there were three other venirepersons who did not respond to any questions that were not struck from the jury; because there were other unkempt venirepersons that were not struck; and because the state did not ask Mr. Montiel any questions about his convictions. Respondent's Exhibit A, pp. 136-37. The record, however, supports the Missouri Court of Appeals determination that "the trial court did not err in overruling [petitioner's] Batson objection," Respondents' Exhibit F, p. 13, and that there is no "clear and convincing evidence" that the prosecutor's reasons for striking Mr. Montiel were pretextual.
Where, as here, the state courts made findings of fact that the prosecutors were not racially motivated in making their strikes, those factual findings "shall be presumed to be correct"and the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). See also Purkett v. Elem, 514 U.S. at 769 (1995) (quoting Marshall v. Lonberger, 459 U.S. 422, 432 (1983)). This is because "evaluation of the prosecutor's state of mind based on demeanor and credibility lies particularly within a trial judge's province." Hernandez v. New York, 500 U.S. 352, 365 (1991) (plurality opinion).
Petitioner has failed to present "clear and convincing evidence" demonstrating that the
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Missouri Court of Appeals' denial of petitioner's Batson claim was based on an unreasonable determination of the facts or on a misapplication of federal constitutional law. See 28 U.S.C. 2254(d)(1) and (2); Batson v. Kentucky, 476 U.S. at 98 (credibility determinations regarding race-neutral reasons for strikes are left for the state courts to decide). Thus, Ground 1 will be denied.
Petitioner contends that there was insufficient evidence to support the charges of robbery and armed criminal action at the close of the state's evidence (Ground 2) and at the close of all of the evidence (Ground 3). Doc. 1, pp. 18-24. Petitioner also contends that, as the evidence was allegedly insufficient, the trial court should have sustained the objection to the verdict directors (Ground 5). Doc. 1, pp. 30-32. Specifically, petitioner contends that the state's evidence against petitioner was insufficient because all evidence was circumstantial; because there was no physical evidence that linked petitioner to the crime; because the victim's description of the perpetrator was vague; because the victim only saw the suspect for a short time and focused only on his eyes; and because the testimony of Lunda Croney at trial was contradictory to former statements she had given as to petitioner's involvement in the crime and should have been excluded for prosecution's failure to produce Ms. Croney's proffer statement (Ground 4). Doc. 1, pp. 24-29.
The Missouri Court of Appeals, in affirming the trial court's ruling as to petitioner's sufficiency of the evidence claims, stated:
[Petitioner]'s complaint that the evidence against him was...
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