Webb v. Roper, No. 4:01 CV 1244 ERW DDN (E.D. Mo. 9/4/2003), 4:01 CV 1244 ERW DDN.
| Decision Date | 04 September 2003 |
| Docket Number | No. 4:01 CV 1244 ERW DDN.,4:01 CV 1244 ERW DDN. |
| Court | U.S. District Court — Eastern District of Missouri |
| Parties | JOHN WEBB, Petitioner, v. DON ROPER, Respondent |
This action is before the Court upon the petition of Missouri state prisoner John Webb for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to the undersigned United States Magistrate Judge for review and a recommended disposition in accordance with 28 U.S.C. § 636 (b). For the reasons set forth below, the undersigned recommends denying habeas relief.
On June 23, 1997, Webb was convicted by a jury in the Circuit Court of St. Louis County, Missouri, on one count of murder of Calvin McGee in the first degree and one count of armed criminal action. The court sentenced Webb to concurrent terms of imprisonment for life without possibility of parole and life imprisonment, respectively. Webb's conviction was affirmed on appeal and transfer to the Missouri Supreme Court was denied.
On May 4, 1999, Webb filed a post-conviction relief motion pursuant to Missouri Supreme Court Rule 29.15. The circuit court denied the motion after an evidentiary hearing. (Resp. Ex. M at 91.) Webb appealed the denial of post-conviction relief and the Missouri Court of Appeals affirmed the denial on June 12, 2001. (Resp. Ex. Q.)
On August 6, 2001, this court received a petition for a writ of habeas corpus from Webb; the petition was filed on August 9, 2001. (Doc. 4.) Webb seeks federal habeas corpus relief on 12 grounds:
(1) the trial court erred in admitting Dionne Randle's testimony regarding statements made by petitioner Webb and Tim Spears concerning the shooting of Calvin McGee;
(2) the trial court erred in permitting the prosecutor to cross-examine petitioner in a way that insinuated the existence of extra-judicial statements by others;
(3) the trial court erred in permitting the scope of the prosecutor's cross-examination of petitioner concerning his prior arrest, prosecution, and conviction;
(4) the trial court erred in failing sua sponte to respond to the prosecutor's closing argument that implied personal knowledge that petitioner had shot Calvin McGee;
(5) the trial court erred in failing sua sponte to respond to the prosecutor's closing arguments that implied to the jury that petitioner would harm the jury;
(6) the trial court erred in overruling petitioner's objection to the prosecutor's attempt to define the required element of "deliberation" and the nature of accomplice liability;
(7) the trial court erred in failing sua sponte to respond to the prosecutor's "ongoing prosecutorial misconduct" based on the prosecutor having engaged throughout the trial in a purposeful pattern of improper questioning of witnesses and improper commentary and argument;
(8) the trial court abused its discretion and committed plain error in failing to instruct the jury on the lesser included offense of murder in the second degree;
(9) insufficient evidence to support the conviction of murder in the first degree;
(10) ineffective assistance of trial counsel for counsel's failure to timely investigate and endorse alibi witness Cartellia Webb;
(11) ineffective assistance of trial counsel for counsel's failure to make a testimonial offer of proof regarding Cartellia Webb's testimony; and
(12) ineffective assistance of trial counsel for failing to object to the prosecutor's improper assertion of personal knowledge and the prospect of petitioner's future criminality. (Doc. 16.)
In its opinion, the Missouri Court of Appeals recounted the facts which support the verdict and which are relevant to Webb's allegations of constitutional violation:
Calvin McGee (victim) was shot to death in his home on Thursday, October 5, 1995. The victim's brother, Alfredo McGee (Alfredo), and defendant attended Jennings high school together. From the fall of 1994 to the fall of 1995, Alfredo had several physical confrontations with defendant, and two of defendant's friends, Tim Spears (Spears) and Zachary Jones (Jones). These confrontations eventually escalated from fist fights to an exchange of gunfire on Sunday October 1, 1995, at 0'Fallen Park. The incident at 0'Fallen Park involved Alfredo and his friends, and two individuals driving defendant's gray Jimmy (truck), one of whom was positively identified as Spears. Alfredo was subsequently arrested and pled guilty to unlawful use of a weapon. Alfredo was released from custody on Thursday, October 5, 1995. At trial, Alfredo could not positively identify defendant as driving the truck.
On Thursday, October 5, 1995, at approximately 10:30 P.M., Willie Boyd (Boyd) was at his home located at 5667 Leverette, in the City of Country Club Hills, Missouri, with his two step-sons, Alfredo and victim. Hearing the doorbell ring, Boyd asked who was outside the door, at which point someone replied Boyd partially opened the door and found two young men dressed in dark clothing, standing on the porch leading up to Boyd's home. After one of the men again asked for Alfredo, Boyd partially closed the door, and went to tell Alfredo he had a visitor named "Ed." Mistakenly believing "Ed" was there to see him, victim went to the door and was shot eleven times in the head and chest area resulting in his death. Boyd then called 911 to report the incident to the police.
Upon arriving at the crime scene, police recovered thirteen spent nine millimeter caliber shells, and three spent.380 automatic caliber shells. John Kaltenbronn, a ballistics expert employed by the St. Louis County Police Department, later determined all thirteen nine millimeter caliber shells had been discharged by one firearm, and the three.380 automatic caliber shells had been discharged from one firearm. Subsequently, the Major Case Squad was activated and aided the St. Louis County Police Department in apprehending defendant.
In the early morning hours of Friday, October 6, 1995, Detective Craig Layton, of the Major Case Squad, received a lead from Tapatrick Barbee (Barbee), an acquaintance of defendant and cousin of Spears, to investigate Jones in connection with the murder of the victim. Upon arriving at Jones' home located at 4444 West Pine, Detective Layton observed, and eventually seized, ten bullet-proof vests from the closet of Jones. At trial, Detective Layton identified a green bulletproof vest, riddled with bullet holes, as one of the vests seized from Jones' closet. Upon examining the bullet-proof vest seized from Jones' closet, Detective Kaltenbronn determined that a bullet retrieved from the victim's jaw, and two taken from the scene of the crime, positively matched a bullet taken from the green bulletproof vest.
Barbee told police that at around 8:00 P.M. on the evening of the murder, Jones, Spears, and defendant discussed a plan to go to a home in Country Club Hills, and kill someone they had fought with at school, and had exchanged gunfire with at 0'Fallen Park. Upon arriving at the home, defendant, Spears and Jones were going to shoot the individual. Defendant told Barbee he intended to go up to the front door and was going to ask for the individual, and when the individual came to the door, defendant, Jones and Spears were going to begin firing their weapons. Barbee informed the police that defendant had shown him and professed to own a nine millimeter gun, with a black handle, and a green bullet-proof vest. Defendant, who was dressed in dark clothing, tried on the green bullet-proof vest in front of Barbee. He also told Barbee he intended to shoot the victim with the nine millimeter gun. In deciding how they were going to drive over to the victim's home, defendant told Barbee that defendant would drive his Truck, and Spears would use his uncle's blue Honda. Additionally, defendant recommended that they wear pantyhose over their faces, to conceal their identities. Consequently, Jones, Spears and defendant tried the pantyhose on in front of Barbee wondering if Barbee could see their faces.
Dionne Randle (Randle) told police that she was Spears' girlfriend from 1992 to 1995, and had attended Jennings High School with Spears, defendant and Alfredo. She said that defendant lived at a house located on Partridge Avenue. On October 5, 1995, after the shooting of victim, Randle said she was at defendant's home with defendant's girlfriend, Tasha Mclntire, Spears, and defendant. Sitting on a bed in defendant's home, defendant and Spears were talking about the murder of victim. Defendant and Spears told Randle that defendant had gone up to the door of victim's house, with Spears and Jones standing on the side of the house. They told Randle that defendant knocked on the door and asked for Alfredo, and when the victim came to the door, they had mistakenly shot the victim. Additionally, defendant and Spears told Randle that as they shot the victim, Spears' gun would not fire since he had left on the safety. Finally, they told Randle that after the shooting, they ran to their automobile and drove away.
Randle also testified that on the morning of Saturday, October 7, she received a phone call from defendant and Spears. During the course of the phone call, defendant told Randle he was leaving town to avoid being caught for the murder of the victim.
Subsequently, police arrested Jones on October 7, 1995. Unable to locate Spears or defendant, police set up surveillance at defendant's home on Partridge Avenue, and arrested defendant on October 10, 1995. Defendant, along with co-defendant Spears, was charged by indictment with murder in the first degree and armed criminal action in connection with the murder of Calvin McGee. At the time of trial, Spears was deceased.
Prior to trial, defense counsel filed a motion in limine to exclude any prior acts, convictions, and/or oral statements in relation to defendant or any co-defendant, including statements by...
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