Williamson v. Jones, No. 90-1093

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore McMILLIAN, Circuit Judge, HENLEY; McMILLIAN
Citation936 F.2d 1000
PartiesJewell WILLIAMSON, Appellant, v. Jim JONES, Appellee.
Docket NumberNo. 90-1093
Decision Date05 August 1991

Page 1000

936 F.2d 1000
Jewell WILLIAMSON, Appellant,
v.
Jim JONES, Appellee.
No. 90-1093.
United States Court of Appeals,
Eighth Circuit.
Submitted Oct. 8, 1990.
Decided June 20, 1991.
Rehearing Denied Aug. 5, 1991.

Page 1001

Matthew Geekie, St. Louis, for appellant.

Melissa Manda, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Page 1002

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and STUART, * Senior District Judge.

McMILLIAN, Circuit Judge.

Jewell Williamson appeals from a final order entered in the United States District Court 1 for the Eastern District of Missouri, adopting the report and recommendations of the United States Magistrate Judge 2 to deny his petition for a writ of habeas corpus. 28 U.S.C. Sec. 2254 (1982). For reversal, appellant argues that (1) the evidence supporting his conviction for murder in the second degree was insufficient, (2) the state trial court failed to instruct the jury on his defense of excusable homicide, (3) the state trial court's instruction on second degree murder incorrectly stated Missouri law, (4) his trial counsel was ineffective, (5) the trial court incorrectly applied the Missouri second degree murder statute by failing to set a minimum time limit, and (6) the state trial court improperly permitted the prosecution to draw inferences from appellant's alleged failure to tell the police all of the relevant facts. For the reasons discussed below, we affirm the order of the district court.

PROCEDURAL HISTORY

Following a jury trial, appellant was convicted of murder in the second degree, pursuant to Mo.Rev.Stat. Sec. 565.004 (1978), and thereafter sentenced to thirty years imprisonment. On appeal, his conviction was affirmed. State v. Williamson, 657 S.W.2d 311 (Mo.Ct.App.1983). Appellant filed a federal habeas petition with the United States District Court, which was dismissed without prejudice because it contained exhausted and unexhausted claims, in contravention of the "total exhaustion" rule dictated by Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). United States ex rel. Williamson v. Armontrout, No. 84-1108-C(4) (E.D.Mo. Aug. 28, 1984).

Appellant then filed a petition seeking post-conviction relief pursuant to Mo.Sup.Ct.R. 27.26 (repealed 1988) ("Rule 27.26"). Appellant asserts that, after the state trial court denied the Rule 27.26 petition, his post-conviction counsel informed him that she would seek to secure rulings from the state appellate court on all of the claims that he now alleges. To the contrary, the Missouri Court of Appeals decision notes only one claim of ineffective assistance of counsel, and that was founded upon the failure of trial counsel to call the medical examiner as a witness and to examine his report. Williamson v. State, 743 S.W.2d 552 (Mo.Ct.App.1987). Thereafter, appellant filed his second petition for habeas relief.

SUFFICIENCY OF THE EVIDENCE

On January 17, 1981, James Treacy, the victim, and Raymond Franklyn were passengers in an automobile being operated by Steve Eckenrod. Franklyn sat on the right side of the rear seat, immediately behind Treacy who sat on the front passenger seat. As Eckenrod traveled north on Lucas and Hunt Road, a car exited Interstate 70 at a high rate of speed. The car, which was being operated by appellant, failed to yield the right of way and nearly collided with the Eckenrod automobile. By swerving, Eckenrod was able to avoid a collision. Appellant then pulled his car parallel to the passenger side of the Eckenrod car. After Treacy observed that appellant had rolled down his window, he rolled down his, and according to the trial testimony, appellant asked him, "Do you have a problem, boy?" In response, Treacy said, "Yes ... I'll shove this f___ beer bottle up your a__...." Franklyn testified that he observed appellant look straight, turn to his left to look at Treacy, point a revolver and fire. He further testified that appellant

Page 1003

appeared to have gritted his teeth and to have been angry. Eckenrod testified that Treacy neither moved his arms nor made any menacing gestures toward appellant prior to being shot. He also stated that he saw appellant reach over in his car, produce a pistol, give a mean look, fix his eyes on Treacy's chest, take aim and fire. Appellant fled after firing the shot, and Treacy died as a result of the gunshot wound.

The police traced appellant by his license plate number and went to his apartment the next day. Initially, appellant denied being near the scene of the incident and said that he had no weapons. After receiving appellant's permission to search his apartment, the police found a .22 caliber revolver hidden behind the foam covering of a stereo speaker. Firearm identification tests confirmed that the .22 caliber revolver was the gun that fired the bullet that took Treacy's life. Subsequently, at a tape recorded interview at the police station, appellant admitted firing the gun and shooting at the Eckenrod car.

In support of his contention that there was insufficient evidence to support the verdict, appellant argues that there was no evidence to prove that he intended to shoot anyone, because the only evidence of his intent was his own testimony to the effect that the gun was fired accidentally. The state argues, however, that such intent can be presumed from appellant's conduct and inferred from the testimony given by Franklyn and Eckenrod.

Our review of appellant's claim of insufficient evidence is controlled by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1978) (Jackson ). In Jackson, the Supreme Court held that the sufficiency of the evidence supporting a conviction is cognizable as a federal constitutional claim under Sec. 2254. Id. at 321, 99 S.Ct. at 2790. To challenge a conviction on such grounds, the petitioner must demonstrate that "upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Id. at 324, 99 S.Ct. at 2792. We adopted this standard in Davis v. Campbell, 608 F.2d 317 (8th Cir.1979).

The magistrate judge applied the Jackson standard of review and the statutory presumption of correctness with respect to appellant's claim of insufficiency of the evidence to sustain the conviction. Based upon the findings of the Missouri Court of Appeals, the magistrate judge independently concluded:

The direct and circumstantial evidence that the state presented at trial, viewed in the light most favorable to the prosecution, is clearly sufficient for a rational trier of fact to find beyond a reasonable doubt that the petitioner possessed the requisite mental elements at the time of the offense. Therefore, petitioner is not entitled to relief on his first federal habeas ground.

Williamson v. Jones, No. 88-1460 C(6), slip op. at 13 (E.D.Mo. Mar. 10, 1989) (Magistrate's Report and Recommendation).

We agree that the Jackson standard is met in this case. To obtain a conviction for murder in the second degree, the state had to prove that appellant possessed the requisite intent elements of premeditation and malice. State v. Williamson, 657 S.W.2d at 312. Premeditation need exist but for a moment only. Malice may constitutionally be presumed from a killing accomplished by the use of a deadly weapon upon a vital part of the body. A presumption of an intent to kill is also present where such a killing takes place. Furthermore, evidence of flight or attempted concealment may be considered by the jury as evidence tending to show a consciousness of guilt. Finally, these mental elements may be proven by circumstantial evidence. See State v....

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35 practice notes
  • Norfolk v. Houston, No. 4:CV94-3302.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • December 26, 1995
    ...172 (8th Cir.1992) (applying Arkansas law); Wilkins v. Iowa, 957 F.2d 537, 542 (8th Cir.1992) (applying Iowa law); Williamson v. Jones, 936 F.2d 1000, 1003 (8th Cir.1991), cert. denied, 502 U.S. 1043, 112 S.Ct. 901, 116 L.Ed.2d 802 (1992) (applying Minnesota Nebraska law at the relevant tim......
  • Lotter v. Houston, No. 4:04CV3187.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • April 25, 2011
    ...the petitioner. Id. at 687, 104 S.Ct. 2052; see also Bryson v. United States, 268 F.3d 560, 561 (8th Cir.2001); Williamson v. Jones, 936 F.2d 1000, 1004 (8th Cir.1991). The first prong of the Strickland test requires the petitioner to demonstrate that his attorney failed to provide reasonab......
  • O'Rourke v. Endell, No. 97-3728
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 17, 1998
    ...abandoned his Rule 37 claims when he withdrew his appeal from the state trial court's denial of those claims. See Williamson v. Jones, 936 F.2d 1000, 1006 (8th Cir.1991) ("[T]he petitioner's failure to pursue his or her claim in a state post-conviction appeal results in a procedural bar to ......
  • Bannister v. Armontrout, No. 92-2476
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 24, 1993
    ...failed to produce sufficient evidence to warrant submission of the instruction is supported by the record. See Williamson v. Jones, 936 F.2d 1000, 1004 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 901, 116 L.Ed.2d 802 (1992). The Supreme Court has made clear that "state courts nee......
  • Request a trial to view additional results
35 cases
  • Norfolk v. Houston, No. 4:CV94-3302.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • December 26, 1995
    ...172 (8th Cir.1992) (applying Arkansas law); Wilkins v. Iowa, 957 F.2d 537, 542 (8th Cir.1992) (applying Iowa law); Williamson v. Jones, 936 F.2d 1000, 1003 (8th Cir.1991), cert. denied, 502 U.S. 1043, 112 S.Ct. 901, 116 L.Ed.2d 802 (1992) (applying Minnesota Nebraska law at the relevant tim......
  • Lotter v. Houston, No. 4:04CV3187.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • April 25, 2011
    ...the petitioner. Id. at 687, 104 S.Ct. 2052; see also Bryson v. United States, 268 F.3d 560, 561 (8th Cir.2001); Williamson v. Jones, 936 F.2d 1000, 1004 (8th Cir.1991). The first prong of the Strickland test requires the petitioner to demonstrate that his attorney failed to provide reasonab......
  • O'Rourke v. Endell, No. 97-3728
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 17, 1998
    ...abandoned his Rule 37 claims when he withdrew his appeal from the state trial court's denial of those claims. See Williamson v. Jones, 936 F.2d 1000, 1006 (8th Cir.1991) ("[T]he petitioner's failure to pursue his or her claim in a state post-conviction appeal results in a procedural bar to ......
  • Bannister v. Armontrout, No. 92-2476
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 24, 1993
    ...failed to produce sufficient evidence to warrant submission of the instruction is supported by the record. See Williamson v. Jones, 936 F.2d 1000, 1004 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 901, 116 L.Ed.2d 802 (1992). The Supreme Court has made clear that "state courts nee......
  • Request a trial to view additional results

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