Wealot v. Armontrout
| Decision Date | 12 March 1990 |
| Docket Number | No. 88-1269-CV-W-3-P.,88-1269-CV-W-3-P. |
| Parties | Frank WEALOT, Petitioner, v. Bill ARMONTROUT, Respondent. |
| Court | U.S. District Court — Western District of Missouri |
Frank Wealot, Jefferson City, Mo., pro se.
Steve Hawke, Missouri Atty. Gen., Jefferson City, Mo., for respondent.
Before the Court is petitioner's application for a writ of habeas corpus under 28 U.S.C. § 2254. A jury convicted petitioner on December 10, 1986, of forcible rape for which the trial court sentenced him to thirty years confinement. In a per curiam opinion, the Missouri Court of Appeals affirmed his conviction on December 8, 1987. 745 S.W.2d 690. The Court of Appeals also denied his motion for a transfer in forma pauperis to the Missouri Supreme Court. Petitioner challenges his conviction on sixth and fourteenth amendment grounds,1 claiming he was denied the right to fully cross-examine certain state witnesses.2
According to the testimony of Sandra Morris, she was raped at knife-point by a male intruder who had broken into her apartment during the early morning hours of May 31, 1986. After her boyfriend, Larry Morris, left for work around 12:30 a.m., she fell asleep in her bed with her two-year-old son, Timothy. Trial Transcript (hereinafter "Tr.") at 5, 7. The next thing she remembered after falling asleep was a man shaking her, telling her to get out of bed. Tr. at 8. He asked her if she had any money, a question he repeated three or four times during the rape and to which she responded, "No." Tr. at 8-9. The intruder then forced Ms. Morris and the child to go into the living room where he told her to perform oral sex upon him, and she "begged him" and told him she did not want to do it. Tr. at 10. Apparently he changed his mind because he next told her to take off her clothes, and he put her on the sofa and raped her with the child standing nearby, crying. Tr. at 10-11, 15. After the rape, he ordered her to go back to her bedroom. Tr. at 15. He pulled the bedroom door shut and told her not to come out. Tr. at 16. She then called the police from her bedroom. Tr. at 16.
After the police arrived, Ms. Morris discovered that the screen of the large kitchen window next to the kitchen door had been slashed and that someone had passed through the screen. Tr. at 12. The window in the kitchen door had also been broken, and the knife that the intruder carried was later identified as one from Ms. Morris' kitchen. Tr. at 8, 12-13, 55.
Ms. Morris testified that the attacker talked to her "off and on" during the time he was raping her. Tr. at 16. She testified that she recognized the assailant by his voice, and that her assailant was Frank Wealot, though she had never previously talked with the defendant and had formerly heard his voice only when Mr. Morris greeted him on passing by. Tr. at 41-44. Ms. Morris also said that her attacker was wearing blue jeans, slippers, no shirt and a nylon stocking over his head. Tr. at 17. Thus, Ms. Morris' identification testimony was critical to the case.
Petitioner's defense was two-fold: he presented an alibi and he attacked the credibility of Sandra Morris. By convicting petitioner, the jury obviously chose not to believe his alibi evidence. In addition, despite the efforts of counsel to undermine her testimony, the jury chose to believe Sandra Morris. The jury had to have relied virtually exclusively on her testimony because there was no physical evidence that Ms. Morris had engaged in sexual intercourse with anyone, despite the fact that she was apparently examined within a reasonably short period after the rape. Tr. at 19, 82-90, 110. Indeed, the prosecution was unable to produce any physical evidence that would link the petitioner in any way to Sandra Morris. Tr. at 82-90, 152-56. All of the State's witnesses other than Sandra Morris gave corroborative testimony; only Ms. Morris' testimony directly implicated petitioner. Accordingly, as in many rape cases, the jury had to have given great weight to the testimony of the victim, Sandra Morris.
Defense counsel exposed significant inconsistencies in Ms. Morris' testimony. For example, Ms. Morris did not identify petitioner as her attacker when she first spoke to the police. Tr. at 113-15. She told the police that her attacker was approximately "the same size as Frank Wealot," who is five feet, five inches tall, but she also said that her attacker was five feet, ten inches tall. Tr. at 113-15. Moreover, it was early in the evening on May 31 after Ms. Morris had seen petitioner in slippers and after she had him arrested that she first mentioned the slippers to the police and first stated that her attacker was five feet, five inches tall. Tr. at 57, 115, 158. Similarly, while Ms. Morris testified at trial that her attacker had a high pitched voice, that was a characteristic she never mentioned to the police. Tr. at 45-46, 73-74. She also failed to notice petitioner's tatoos which were apparently quite noticeable. Tr. at 35-38, 67. Her testimony as to whether her assailant ejaculated is likewise very inconsistent. Tr. at 58-59, 71-72, 77-78.
Defense counsel contended that Ms. Morris had a strong motive for giving false testimony against the petitioner. Petitioner offered to show that Larry Morris regularly locked Ms. Morris in their apartment and that she was unable to leave the apartment. Tr. at 61-65. On a few other occasions she had even "called begging people to come let her out." Tr. at 62. Petitioner wanted the jury to consider the possibility that Ms. Morris had slashed the screen and had broken the window herself. However, on cross-examination of both Sandra and Larry Morris, defense counsel was not permitted to inquire into whether Mr. Morris regularly locked Ms. Morris in the apartment. Tr. 98-99.
Counsel also wanted to inquire into whether Mr. Morris was jealous of and physically abusive of Sandra Morris. Tr. at 51-55, 104-05. Although counsel proposed some other reason for this line of inquiry after the trial court ruled against permitting inquiry into the regular lock-ups, petitioner argues that counsel originally intended to propose that Ms. Morris slashed the window screen herself to escape from the apartment and then broke the kitchen door window to get back inside. Fearing retribution from her jealous, abusive boyfriend, she fabricated the rape story. Finally, to convince Larry Morris that she had not concocted the story, she felt compelled to identify her assailant and help obtain his conviction, especially because Mr. Morris was already accusing other people. Tr. at 51-55. Ms. Morris said her boyfriend "wanted to put the blame on somebody else that she knew didn't do it." Tr. at 51.
The State argues, as it did in the state courts, that the "lock-up" testimony was irrelevant, collateral, "highly prejudicial," and would confuse the jury. Tr. at 54, 61-65, 98. Defense counsel countered that the "lock-up" testimony and the testimony that the boyfriend was jealous and abusive "has everything to do with her motive, why she's testifying." Tr. at 54, lines 10-11. "It goes to her motive as to why she accused somebody else, because she's trying to shift the blame." Tr. at 53, lines 20-22. Despite its apparent direct relevancy and the lack of any articulation by the prosecution or the trial court as to how the testimony would prejudice or confuse the jury, the trial court sustained the State's objections.
The State's only physical evidence in the case was consistent with the disallowed defense theory. The slashed window screen was pushed outward, indicating that someone had passed through it from the inside going out. Tr. at 110, 120. The glass broken out of the kitchen door was scattered on the kitchen floor indicating that it had been broken from the outside. Tr. at 110, 117. Thus, to believe that petitioner had done both things would mean that he entered through the window in the door, but then exited through a different window after slashing the screen and pushing through it. Petitioner's argument at trial and before this Court is that his theory is at least as plausible an interpretation of the evidence as the State's theory. Tr. at 63. He insists that the restrictions placed on his cross-examination of Sandra and Larry Morris prevented him from offering to the jury his theory — strengthened by Ms. Morris' inconsistent stories and corroborated by the physical evidence — in violation of the sixth and fourteenth amendments.
Before a petitioner may obtain federal habeas corpus review of his state conviction or sentence, Congress has required that he first "exhaust" his federal claims in the appropriate state courts. 28 U.S.C. § 2254(b), (c) (1982).3 A petitioner has exhausted his claim either: 1) if he has "fairly presented the federal constitutional dimensions of his federal habeas corpus claim to the state courts"; or 2) if there are "no currently available, non-futile state remedies through which he can present the federal constitutional dimensions of his claim to the state courts." Laws v. Armontrout, 834 F.2d 1401, 1412 (8th Cir. 1987), aff'd, 863 F.2d 1377 (8th Cir.1988) (en banc), cert. denied, ___ U.S. ___, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989).4 "The purpose of the fair presentation component of the exhaustion requirement is to give the state courts the first opportunity to review federal constitutional issues and to correct federal constitutional errors made by the state's trial courts." Id. "Fair presentation" requires that the petitioner "inform the state court of both the factual and legal premises of the claim he asserts in federal court." Id. (quoting Dave v. Attorney General of State of New York, 696 F.2d 186, 191 (2d Cir.1982) (en banc)).
On the other hand, "when the source of a claim is apparent, a criminal defendant does not waive his constitutional claim simply because his counsel does not cite the constitution by chapter and verse."...
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Wealot v. Armontrout
...in violation of the sixth and fourteenth amendments. The district court found that Wealot had exhausted his available state remedies, 740 F.Supp. at 1441, and had fairly presented his confrontation claims to the state courts and thus had preserved them for federal habeas review. Id. at 1441......