Worthington v. Roper

• Decision Date: 27 March 2009
• Docket Number: No. 4:05-CV-1102 CAS.,4:05-CV-1102 CAS.
• Citation: 619 F.Supp.2d 661
• Parties: Michael S. WORTHINGTON, Petitioner, v. Don ROPER, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

619 F.Supp.2d 661

Michael S. WORTHINGTON, Petitioner, v. Don ROPER, Respondent.

No. 4:05-CV-1102 CAS.

United States District Court, E.D. Missouri, Eastern Division.

March 27, 2009.

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Gino F. Battisti, Foley and Mansfield, P.L.L.P., St. Louis, MO, Kent E. Gipson, Kansas City, MO, for Petitioner.

Andrew W. Hassell, Stephen D. Hawke, Assistant Attorney General, Attorney General of Missouri, Bill L. Thompson, Missouri Supreme Court, Jefferson City, MO, for Respondent.

MEMORANDUM AND ORDER

CHARLES A. SHAW, District Judge.

This matter is before the Court on petitioner Michael Shane Worthington's petition for writ of habeas corpus made pursuant to 28 U.S.C. § 2254. Petitioner is a state prisoner currently incarcerated in the Potosi Correctional Center under a sentence of death. Petitioner, who is represented by appointed counsel in these proceedings, challenges the constitutionality of his sentence. The matter is fully briefed and now ripe for review.

I. Procedural History

Factual Background

On October 1, 1995, Worthington was arrested in connection with the death of Melinda Griffin.¹ Ms. Griffin, whose body was discovered by a neighbor, had been raped and strangled, and her condominium had been burglarized. Worthington was found in possession of her car and several of her personal items. When questioned by the police, Worthington could not remember the details of the killing because he had been drinking alcohol and taking drugs for several days. Worthington's DNA was found on the victim's body.

Trial Court Proceedings

Worthington was initially represented by retained counsel, Joel Eisenstein. Mr. Eisenstein later withdrew, and petitioner was represented by Joseph Green, N. Scott Rosenblum and Bradford Kessler, who were also retained. On August 28, 1998, without a written plea agreement, Worthington pleaded guilty to murder in the first degree, burglary in the first degree and forcible rape. The trial judge, the Honorable Grace M. Nichols of the Eleventh Judicial Circuit, St. Charles County, accepted the guilty plea.² Worthington waived a jury for sentencing, and Judge Nichols preceded over a penalty hearing that began on September 14, 1998 and concluded three days later.

At the penalty hearing, the prosecution called twenty-four witnesses on its behalf, including five Missouri law enforcement officers, petitioner's co-worker, a neighbor, two correctional officers from the St. Charles County Department of Corrections, a law enforcement officer from Peoria, Illinois, an Illinois probation officer, a state forensic psychologist, the medical examiner, a genetic analyst, and eleven friends and family members, who read prepared victim impact statements.

The Missouri law enforcement officers testified as to the crime scene, petitioner's arrest, his interrogation, and the victim's effects that were found in petitioner's possession, including her jewelry and credit cards. The medical examiner provided compelling testimony regarding the extreme brutality of the rape, as well as the force and the time it would have taken petitioner to strangle the victim. The detective from Peoria, petitioner's home town, testified about Worthington's juvenile record and extensive criminal history. The probation officer testified regarding petitioner's juvenile record, his extensive criminal history, and some of his family background and educational history.

Charlotte Peroti, the neighbor, testified that ten days before the murder, she confronted Worthington inside her condominium late at night and he attempted to sexually assault her and stole her car. Petitioner's co-worker testified that she had spent time with petitioner earlier in the evening on the night of the murder and she described those events.

The prosecution also called officers from St. Charles County Department of Corrections, the jail where petitioner had been detained prior to trial. The officers testified that while in jail Worthington had been involved in many incidents involving contraband, fighting and other misconduct.

The prosecution also offered the testimony of Dr. Max Givon, a state forensic psychologist, who had interviewed Worthington in 1996 for a competency examination. Dr. Givon testified that Worthington did not have a mental disease or defect, but that he had antisocial personality disorder, was malingering, cocaine-dependent, and abused alcohol. He also opined that petitioner appreciated the criminality of his offense conduct at the time of the crime.

The prosecution also presented victim impact statements from a number of friends and family members, and introduced numerous photographs, awards and mementoes of and from the victim. Defense counsel did not object to the introduction of the victim impact evidence, aside from asking that the witnesses not offer their recommendations for a sentence. The court sustained this objection.

Defense counsel called only two mitigation witnesses to the stand: Carol Tegard, petitioner's maternal aunt, and Roswald "Lee" Evans, a psychiatric pharmacist.³ Ms. Tegard, the petitioner's maternal aunt, testified about Worthington's abuse and neglect as a child. Ms. Tegard testified that petitioner's mother, who was sixteen when she was pregnant with petitioner was a prostitute, and that she had sex and abused drugs and alcohol in front of petitioner when he was a child. She also stated that petitioner's mother attempted suicide numerous times in petitioner's presence. Ms. Tegard testified that petitioner's father was also a drug abuser, in addition to a dealer and an absentee father, who was often in jail and had virtually no contact with petitioner until he was an adolescent when he introduced petitioner to drugs and crime. According to Ms. Tegard, petitioner was heavily involved in drugs starting as a teenager and his immediate family was not supportive and, in fact, they enabled and supported, if not initiated, his drug addiction and discouraged his treatment.

Dr. Lee Evans, a psychiatric pharmacist, was the defense's only expert witness. He testified that Worthington was extremely intoxicated and high on crack cocaine and alcohol at the time of the offense. He opined Worthington used prescription drugs and alcohol to control the after-effects of crack cocaine abuse. He also stated that crack cocaine users often experience black-outs, and that Worthington's drug abuse made him unable to control his impulses and impaired his judgment. Dr. Evans testified that he could not offer an opinion as to whether petitioner suffered from mental disease or defect because it would be outside his area of expertise. Furthermore, defense counsel did not ask Dr. Evans to prepare a report and, therefore, none was entered into the record.

Closing arguments for the penalty phase were heard on October 15, 1998. On November 4, 1998, the day after she lost her re-election bid, Judge Nichols held the sentencing hearing. At the sentencing hearing, petitioner made a statement, as did the victim's mother. At the conclusion of the hearing, Judge Nichols stated that she found the state had established beyond a reasonable doubt two statutory aggravating circumstances: (1) that petitioner committed the murder for the purpose of receiving money or any other thing of monetary value from the victim, and (2) that the murder was committed while petitioner was engaged in the perpetration of forcible rape and burglary. The trial judge considered the non-statutory mitigating circumstances, and found that petitioner was raised in a dysfunctional family, was abused and neglected as a child, and was a long-term drug abuser. The trial judge concluded, however, that beyond a reasonable doubt, the aggravating circumstances outweighed the non-statutory mitigating circumstances. She sentenced Worthington, as a prior and persistent offender, to death for the murder, and to terms of thirty years and life imprisonment for the burglary and rape respectively.

Petitioner's Direct Appeal

Petitioner appealed the sentence and different counsel represented petitioner on direct appeal. Under Missouri law, the Missouri Supreme Court has exclusive appellate jurisdiction to review a death sentence and "any errors enumerated by way of appeal." State v. Worthington, 8 S.W.3d 83, 86 (Mo.1999) (en banc) (citing Mo. Const. art. V, sec. 3; Mo.Rev.Stat. § 565.035.2 (1994)). In his direct appeal, petitioner argued, among other things, that he was unfairly prejudiced by the admission of the victim impact evidence. He also argued the trial court erred in admitting evidence of other bad acts without prior notice to the defense, and statements he made during the competency examination to prove statutory aggravating circumstances should have been excluded. The Missouri Supreme Court rejected petitioner's arguments, many on plain error review, and affirmed his sentence. The Missouri Supreme Court also conducted a proportionality review of the death sentence as required by state law. Mo Rev. Stat. § 565.035.3. The court found that the death sentence was not imposed under the influence of "passion, prejudice or any other arbitrary factor" and was not "excessive and disproportionate to other similar cases." Worthington, 8 S.W.3d at 94 (citing state cases in which death sentences were affirmed where victims were murdered in course of robbery and rape).

Petitioner's Motion for State Post-conviction Relief

Following the denial of his direct appeal, Worthington filed a pro se motion for state post-conviction relief. The trial court appointed the office of the public defender to represent petitioner, and motion counsel filed an amended motion. An evidentiary hearing was held in late January through early February 2003. In May 2003, the motion judge, the Honorable Nancy L. Schneider, denied the motion for post-conviction relief.⁴ Worthington appealed the denial to the Missouri Supreme Court.

In his...