Moore (ID 86598) v. McKune et al
Filing
12
MEMORANDUM AND ORDER. The petition for habeas corpus relief under 28 U.S.C. §2254 (Dk. 1) is denied. Petitioner has not met the standard as to any issue presented, so no certificate of appealability shall be granted. Signed by U.S. District Senior Judge Sam A. Crow on 11/7/2012. Mailed to pro se party: Mr. Gregory Moore, Reg. No. 86598, Lansing Correctional Facility, PO Box 2, Lansing, KS 66043-0002 by regular mail. (bmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GREGORY MOORE
Petitioner,
vs.
No. 11-3230-SAC
DAVID R. MCKUNE, et al.,
Respondents.
MEMORANDUM AND ORDER
This case comes before the Court on Gregory Moore’s petition for a
writ of habeas corpus pursuant to 28 USC § 2254.
I. Background
Petitioner was convicted by a jury in the District Court of Sedgwick
County, Kansas of capital murder, aggravated kidnapping, criminal
possession of a firearm, and four counts of attempted capital murder.
Petitioner was sentenced to life imprisonment without parole, plus 1,094
months. The Kansas Supreme Court affirmed Petitioner‘s convictions. State
v. Moore, 287 Kan. 121, 194 P.3d 18 (2008). Petitioner thereafter filed a
K.S.A. 60-1507 motion, but that motion was denied after a hearing. The
denial was affirmed by the Kansas Court of Appeals, Moore v. State, 253
P.3d. 386, 2011 WL 2555655 (Kan.App.2011) (Case No. 104,267)
(Unpublished Opinion), and the Kansas Supreme Court denied review.
Petitioner then timely filed this application for federal habeas corpus relief,
and the State admits that Petitioner has exhausted his available state court
remedies.
Petitioner makes three general claims: 1) that the district court erred
in excluding testimony from his toxicology expert; 2) that trial counsel was
constitutionally ineffective; and 3) that the district court erred by not
instructing the jury on voluntary intoxication.
II. Underlying Facts
The facts of the case as determined by the Kansas Supreme Court in
Petitioner‘s direct appeal follow:
Shortly after midnight on April 9, 2005, Newton police were
dispatched to Moore's residence on a domestic disturbance call.
Officers met outside with H.A., the 14–year–old daughter of Alveda
Sparks, who lived at the residence with Moore. H.A. told officers that
Moore was holding her mother inside and was beating her. H.A. had
run outside and called 911 on her cell phone. H.A. warned officers that
Moore had a handgun tucked into the waistband of his pants. Officers
knew Moore as a serious substance abuser; he was known to have
recently used methamphetamine and was under surveillance by
officers for suspicion of manufacturing methamphetamine. Moore was
also known to be combative and violent toward law enforcement. The
officers at the scene called in an emergency response team (ERT).
Detective Townsend Walton, who was outside the residence,
attempted to reach Moore on his cell phone without success. About 3
a.m., Sparks called 911 and spoke to Harvey County Undersheriff
Steve Bayless at dispatch. Sparks told Bayless that H.A. had
overreacted, that nothing bad was going on, that Moore did not have a
gun, and that she and Moore wanted H.A. to come back home. Walton
called Moore shortly thereafter and talked with him from outside the
residence. Moore assured Walton that, although he had a crossbow, he
did not have any firearms.
At Walton's behest, Moore agreed to speak with Walton and
Bayless through the front door. The officers asked Moore to show
Sparks to them so that they could verify her safety. Moore obliged by
2
turning on a light. Sparks was sitting on the couch, putting on her
shoes. Walton asked Moore to allow Sparks to leave the residence, and
Walton heard Sparks tell Moore that she was leaving. When Moore
turned around to argue with Sparks, Walton saw a magazine clip in
Moore's waistband before Moore slammed the door.
Officers heard a dull thud, consistent with someone being struck,
and they heard Sparks screaming. Walton then broke glass in or near
the door, reached into the house, and unlocked and opened the door.
Sparks warned officers that Moore had a gun; and the officers waved
in ERT members. As the officers, their weapons drawn, entered the
residence, Sparks ran out and Moore began firing. Moore's shots struck
Harvey County Deputy Sheriff Kurt A. Ford in the head and Hesston
Police Detective Christopher D. Eilert in a calf, a shoulder, and both
hands. Moore also fired at Walton and Harvey County Sheriff
Investigator B.J. Tyner. The officers had not fired; except for Tyner,
who returned fire after Ford and Eilert fell. Walton and Newton Police
Officer Tony Hawpe pulled Ford and Eilert from the residence, and the
ERT members withdrew. Ford died of his wounds.
Moore called Walton and told him he was “reloaded and ready
for more blood.” When Moore learned from a friend that he had shot
two officers, he called Walton again. Walton remained in contact with
Moore by phone for more than 4 hours before Moore finally
surrendered to law enforcement about 8 a.m. During the 4 hours,
Moore learned that one of the officers was dead, and he said that he
was convinced he would be shot if he emerged from his home. Moore
also told Walton that he had been defending himself and that, if any
officers tried to come into his home, he would shoot them.
Moore was charged with one count of capital murder in violation
of K.S.A. 21–3439(a)(5), two counts of attempted capital murder
under the same subsection and K.S.A. 21–3301 for his shooting of
Eilert and Tyner; one count of aggravated kidnapping under K.S.A.
21–3421; and one count of criminal possession of a firearm contrary
to K.S.A. 21–4204. In an amended complaint, the State added two
more counts of attempted capital murder for the shots fired at Walton
and Bayless.
…
During opening statement, the prosecution introduced its theory
of the case: that Moore had beaten Sparks and held her against her
will and that, when police were called, he decided to go down in a
blaze of glory, planning to “blast” as many police officers as he could
even though it might cost him his life.
Moore, on the other hand, suggested that the crimes arose from
a perfect storm, a coincidence of events that he did not want or
intend. Under this interpretation of the facts, Moore believed that he
3
was going to die that night—that he would be shot to death by police if
they entered his home or he left it. Laboring under this belief, when
Moore saw the ERT members come inside in full gear and with
weapons drawn, he panicked and did what he honestly believed he had
to do to defend himself. Consistent with this theory, Moore's counsel
pointed out that, after Moore fired and saw officers fall, Moore did not
shoot at the comrades who dragged them away. Instead, he
immediately called police and eventually surrendered.
The State called H.A., who testified about the events leading up
to the stand-off. She testified that Moore and her mother had begun
arguing; that he had pulled a bedroom door off its hinges and had
broken a broomstick over his knee and held it to Sparks' throat. He
also had punched H.A.'s dog. H.A. testified that Moore had a gun and
would not let her mother leave when she wanted to do so. Eventually,
Sparks told H.A. to go outside and call the police, which she did. The
audio recording of H.A.'s 911 call was admitted into evidence and then
played for the jury. On cross-examination, H.A. testified that generally
Moore was nice and she liked him. When he drank, she said, he
became mean, violent, and paranoid. She testified that she did not
think Moore had been drinking the day or evening before the crimes,
but she did not know.
Bayless also testified about the events of the evening; and
Sparks' 911 call, during which Bayless spoke with Moore, was admitted
into evidence and then played for the jury.
Scott Powell and Marc Smith of the Newton Police Department,
who were present at Moore's residence at the time of the crimes, gave
testimony substantially similar to Bayless'. Brian Rousseau, an ERT
member, testified about ERT training, strategy, and the events of the
evening. Walton also testified at some length.
Sparks testified that she and Moore had been arguing off and on
all night April 8, continuing into April 9. Her account of events was
similar to H.A.'s. At one point, she said, Moore lunged at her. Her
testimony was inconsistent on whether Moore hit her, but she agreed
that she eventually directed H.A. to go outside and call police. At that
point, Moore was armed with at least one gun. Once Moore became
aware that police were coming, Sparks testified, he “started freaking
out,” grabbing another pistol and a shotgun, and made Sparks get into
a closet with him. He told her that he was not going to go to jail, that
the police were going to try to shoot him, that there would be a
“shootout” and “bloodbath,” and that she would die with him. He also
said that the confrontation would be her fault.
Sparks testified that she told Moore she needed to use the
bathroom. Moore forced her to get into the shower with him, and they
stayed in the shower until the hot water ran out. Sparks said she did
4
not want to be naked when the police came in, and she began putting
her clothes back on. This angered Moore, and he hit her in the shin
with the gun and threatened to shoot her heel off. When he put two
guns to her ribs, the phone rang. The police were outside and trying to
reach them.
Sparks eventually called 911, and she and Moore both talked
with police. Although she testified at trial that she was afraid of Moore,
on the phone she told police that Moore did not have a gun; and she
heard Moore tell police the same thing. She testified that Moore agreed
to talk with police at the front door, and he put the guns under the
mattress in the bedroom. While Moore was talking with the officers,
Sparks came into the front room with a bag she had packed and began
putting on her shoes. Moore saw her and said that he thought she had
said she would not leave. He then slammed the door and punched her
in the hip, and she screamed. Sparks testified that, when Moore then
headed back to the bedroom, she believed he was going for the guns.
She was afraid for her life and ran out the door where the officers
were gathered.
On cross-examination, Sparks testified that Moore had a drinking
problem, that he used prescription painkillers for a back injury, and
that he had begun using illegal drugs, including methamphetamine.
When he was using these substances, she said, he became mean,
violent, and angry, all of which he was at the time of the crimes. When
asked if she had seen Moore consume any alcohol or
methamphetamine on April 8 or 9, she said that she had not.
Ed Bartkoski of the Kansas Bureau of Investigation (KBI)
testified that, when he processed the crime scene, he discovered two
firearms in defendant's residence—one in the kitchen, one in the
bedroom. Each weapon was fully loaded, one with hollow point
ammunition. Bartkoski testified that multiple shell casings were
recovered from the scene consistent with the loaded weapons. In
addition, the KBI recovered seven rifles and four shotguns from the
residence, along with accompanying ammunition; a bullet-proof vest;
drug paraphernalia consistent with narcotic use; and prescription pain
medication.
Two casings found at the scene were consistent with a weapon
issued to law enforcement. Tyner's testimony covered the weapons,
gear, and armor used by the ERT. Tyner had been carrying a .40
caliber pistol and a shotgun; Ford had been carrying a rifle; and Eilert
had a submachine gun. Tyner testified that the team entered out of its
usual formation. Although Tyner was supposed to enter first with a
ballistic shield, he was knocked out of the “stack” when Sparks ran out
of the home. Thus, Ford entered first, followed by Eilert and then
Tyner. When Moore fired, Ford and Eilert fell, and Tyner fired his
5
pistol. Rousseau and Officers Maurice Montano and Brian Hall entered
from the back of the home.
Tyner also testified that the ERT initially planned to enter the
home to rescue Sparks. When she ran out, they were already
committed to entry; so their goal changed from hostage rescue to
effecting Moore's arrest.
Eilert provided substantially similar testimony concerning the
events, and he discussed his injuries.
Thomas Curt Taylor, a long-time friend of Moore, testified that
he woke up on April 9 with a feeling “something was wrong with
[Moore].” Taylor called Moore, who told him that “all hell broke loose.”
Moore said he had just “shot a cop,” that he had “blasted the cops.”
Moore also told Taylor that he was not going to jail; rather, he was
going out in a “blaze of glory,” an exit that Moore had often
mentioned. Taylor said he encouraged Moore to surrender, but Moore
was “not wanting to surrender at all.”
Taylor also said Moore talked about his experience in the military
police, and he related an anecdote in which Moore had refused to
relinquish his firearm because, he said, he was a soldier and that was
how he was trained. Taylor also testified that Moore struggled with
alcoholism and had begun using illicit drugs. Taylor said Moore could
be mean and paranoid when drinking. Taylor did not specifically testify
about his impression of Moore's sobriety during their phone
conversation, but he said that it seemed Moore was “in a zone.”
Amy Coody, a KBI firearm and toolmark examiner, testified that
Moore's two pistols discharged multiple rounds, including the bullet
recovered from Ford's head, and that the only officer's weapon that
had been fired was the .40 caliber pistol, presumably Tyner's.
…
On behalf of the defense, Raymond E. Riniker, an investigator
for the Kansas Death Penalty Unit, testified that he discovered large
quantities of full, partially full, and empty beer and liquor bottles at
Moore's residence.
Moore requested an instruction on voluntary manslaughter based
on imperfect self-defense and on voluntary intoxication, the second
conditional on the district judge's evaluation of Martinez' testimony.
…
The district judge concluded that Martinez' methodology comported
with the Frye standard; however, the testimony was inadmissible
because there was no evidence that Moore had been using drugs on
the night of the crimes. On the contrary, Sparks testified she did not
think he had been, and police testified that their conversations with
Moore both before and after the shootings were coherent. The district
6
judge said, “I'll find as a matter of law that I do not have sufficient
evidence to give a voluntary intoxication instruction.”
The district court also declined to give a voluntary manslaughter
instruction based on imperfect self-defense, i.e., that a person who
harbors an honest but unreasonable belief in the necessity of exerting
deadly force in self-defense is guilty of voluntary manslaughter rather
than capital murder. …
The jury found Moore guilty as charged. When, after a separate
sentencing proceeding, the jury was unable to reach a unanimous
verdict on imposition of the death penalty, the judge sentenced Moore
to life imprisonment without parole, plus 1,094 months.
State v. Moore, 287 Kan. at 122-130.
III. AEDPA Standard
This matter is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). AEDPA imposes a “highly deferential
standard for evaluating state-court rulings, and demands that state-court
decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. __, 130
S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (citation and internal quotation
marks omitted). Under AEDPA, where a state prisoner presents a claim in
habeas corpus and the merits were addressed in the state courts, a federal
court may grant relief only if it determines that the state court proceedings
resulted in a decision (1) “that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States” or (2) “that was based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d).
7
A state court decision is “contrary to clearly established Federal law”
when: (a) the state court “ ‘applies a rule that contradicts the governing law
set forth in [Supreme Court] cases' “; or (b) “ ‘the state court confronts a
set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [that]
precedent .’ “ Maynard v. Boone, 468 F.3d 665, 669 (10th Cir. 2006)
(quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state court
decision involves an unreasonable application of clearly established federal
law when it identifies the correct legal rule from Supreme Court case law,
but unreasonably applies that rule to the facts. Id. at 407–08. Likewise, a
state court unreasonably applies federal law when it either unreasonably
extends, or refuses to extend, a legal principle from Supreme Court
precedent where it should apply. House v. Hatch, 527 F.3d 1010, 1018 (10th
Cir. 2008).
In order to obtain relief, a petitioner must show that the state court
decision is “objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409
(2000) (O'Connor, J., concurring). “The question under AEDPA is not
whether a federal court believes the state court's determination was
incorrect but whether that determination was unreasonable—a substantially
higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). “[A]
decision is ‘objectively unreasonable’ when most reasonable jurists
exercising their independent judgment would conclude the state court
8
misapplied Supreme Court law.” Maynard v. Boone, 468 F.3d 665, 671 (10th
Cir. 2006).
IV. Exclusion of Toxicology Expert’s Testimony
Petitioner first contends that the trial court’s exclusion of the
testimony of his toxicology expert, Dr. Terry Martinez, denied him his right
to present a defense. Petitioner’s counsel proffered Dr. Martinez’ testimony
in support of his voluntary intoxication theory. Chiefly, Dr. Martinez
proffered that a urine test completed soon after Petitioner’s arrest indicated
a near-lethal level of methamphetamine in Petitioner’s system, which may
have caused delusions, hallucinations, and bizarre violent behavior.
A. Right to Present a Defense
The Constitution guarantees criminal defendants “a meaningful
opportunity to present a complete defense.” California v. Trombetta, 467
U.S. 479, 485 (1984)). But the right to present a defense is not unlimited
and is subject to reasonable restrictions. United States v. Scheffer, 523 U.S.
303 (1998); Chambers v. Mississippi, 410 U.S. 284, 295 (1973). The right
must bow to “other legitimate interests in the criminal trial process.”
Hardaway v. McKune, 125 Fed.Appx. 955, 956-57 (10th Cir. 2005), quoting
Chambers, 410 U.S. at 295. The Due Process Clause does not guarantee a
criminal defendant the right to introduce all relevant evidence, as evidence
that is incompetent, privileged, or otherwise inadmissible under standard
rules of evidence may be properly excluded. Montana v. Egelhoff, 518 U.S.
9
37, 42 (1996). The Constitution affords trial judges “wide latitude” to
exclude evidence that is repetitive or only marginally relevant, or poses an
undue risk of harassment, prejudice, or confusion of the issues, or is
otherwise excluded through the application of evidentiary rules that serve
the interests of fairness and reliability. Crane v. Kentucky, 476 U.S. 683,
689-90 (1986).
B. Trial Proceedings
Under Kansas law, voluntary intoxication may be taken into account
for a limited purpose:
An act committed while in a state of voluntary intoxication is not less
criminal by reason thereof, but when a particular intent or other state
of mind is a necessary element to constitute a particular crime, the
fact of intoxication may be taken into consideration in determining
such intent or state of mind.
K.S.A. 21–3208(2). The capital murder and attempted capital murder
charges against the Petitioner included intent and premeditation as
elements. See K.S.A. 22–3439(a)(5).
The State filed a motion in limine to exclude Dr. Martinez’s testimony,
contending that the theories he relied on were not generally accepted within
the forensic toxicology community, as required under Frye v. United States,
293 F. 1013 (D.C.Cir. 1923), and Kansas law.1
Moore provided the State with the report of his toxicology expert, Dr.
Terry Martinez. At a Frye … hearing regarding Martinez' proposed
1
To determine the admissibility of expert scientific opinion evidence, Kansas courts continue
to apply the general acceptance test set forth in Frye, rather than the test set forth in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See State v. Shadden,
290 Kan. 803, 818 (2010).
10
expert testimony, the State acknowledged that Moore's urine screen,
done at the hospital after his arrest, suggested the presence of
methamphetamine. The State argued, however, that its expert would
testify that Martinez' method of extrapolating backward from urine
screen values to suggest that Moore had ingested near-lethal doses of
methamphetamine before the crimes was scientifically unreliable, and
that even literature relied upon by Martinez stated as much. The State
maintained that such extrapolations could only be made reliably from
blood tests, and no blood samples were taken from Moore. The
defense argued that Martinez' testimony would be pure opinion and
that its introduction in the guilt phase of trial would support an
instruction on voluntary intoxication. The district judge informed the
parties that Martinez could not testify unless he could support his
scientific method through the professional literature.
Moore, 827 Kan. at 124.
During a Frye hearing, Petitioner’s counsel proffered the testimony of
Dr. Terry Martinez in support of his voluntary intoxication theory.
Out of the presence of the jury, Martinez took the stand. He referred
to several scientific texts in addition to his own experience, including
Baselt, Disposition of Toxic Drugs and Chemicals in Man (7th ed.
2004), and Levine, Principles of Forensic Toxicology (2d. rev. ed.
2006) and testified about his evaluation of the results of Moore's urine
screening. Martinez said that at 8:35 the morning of his arrest Moore's
urine contained more than 7,500 nanograms per milliliter of
methamphetamine and 2,709 nanograms per milliliter of
amphetamine; and it had a pH of 6. Martinez said amphetamine is the
major metabolite of methamphetamine, and it is generally accepted in
the scientific community that the expected ratio of methamphetamine
to amphetamine is 10 to 1 over a wide range of pH values. In his view,
given the amphetamine level in Moore's urine, one might extrapolate
that his methamphetamine level was 27,000 nanograms per milliliter,
a borderline lethal level, according to Disposition of Toxic Drugs and
Chemicals in Man. Martinez also testified that there is faster excretion
of methamphetamine and amphetamine in acid urine. Defendant's
urine, with a pH of 6, was more acidic than urine with a neutral pH of
7.
Martinez then discussed the effects of methamphetamine on the
human body, particularly on the nervous system. He opined that
methamphetamine in the level shown by Moore's urine would cause
delusions, hallucinations, and bizarre, violent behavior.
11
On cross-examination, Martinez was asked to read passages
from his reference authorities. One stated that “it is difficult if not
impossible to answer questions regarding dosage, mode of intake,
degree of impairment, or the frequency of use [from urinary excretion
of a drug].” Another of the authorities indicated that there was “no
direct relationship” between “impairment and the urine concentration
of a drug”; that “identification of a drug in urine, therefore, only
indicates that the suspect has been exposed to that drug”; and “that
there is no well-established correlation between blood concentration
and performance impairment for any drug other than alcohol.”
The district judge concluded that Martinez' methodology
comported with the Frye standard; however, the testimony was
inadmissible because there was no evidence that Moore had been
using drugs on the night of the crimes. On the contrary, Sparks
testified she did not think he had been, and police testified that their
conversations with Moore both before and after the shootings were
coherent.
Moore, 287 Kan. at 128-29.
C. Kansas Supreme Court Ruling
The Kansas Supreme Court upheld the exclusion of Dr. Martinez’s
testimony, finding it was not based on admitted evidence, was vague or
speculative, and was not helpful to the jury’s understanding of the case.
Our careful examination of Martinez' proffer convinces us that
there was nothing he could have contributed to the jury's
understanding of the case, even if the jury had been given a voluntary
intoxication instruction.
To begin with, the report of the urine screening performed
shortly after Moore was arrested was not admitted into evidence. No
foundation for it was laid, and no hearsay exception was established.
This report was the sole basis for Martinez' expert opinion, and Kansas
law requires an expert's opinion to be supported by admitted evidence.
See State v. Gonzalez, 282 Kan. 73, 80–88, 145 P.3d 18 (2006).
Second, even if a voluntary intoxication instruction had been
given, Martinez admitted that he needed more information to opine on
Moore's actual impairment at the time of the crimes. Although his
report stated that “habitual use” of the “massive levels of
methamphetamine” that would produce the values in Moore's
screening report “are known to result in toxic psychosis characterized
12
by paranoia, delusion, hallucinations, bizarre and violent behavior,” he
was unable to testify about the timing of Moore's ingestion of drugs or
the effect the drugs actually had on him in particular.
We also see some similarity between this case and State v.
Lawrence … in which we ruled that a treating physician could not
testify about the effect that the risk of being injured or killed in a
shooting may have on African–American men. We ruled that such
general testimony could not be employed in that case to support an
argument that a particular African–American man … possessed an
honest belief in certain circumstances that he must use deadly force in
self-defense. … As we recognized in Lawrence, vague or speculative
testimony about what may be true about certain members of a group
on various occasions is not the same as testimony about what was
true about a particular member of that group on a specified occasion.
Moore, 287 Kan. at 136-137.
D. AEDPA Review
In cases such as this, the petitioner bears the burden to “explain the
relevance of the proffered-but-excluded evidence.” Morris v. Burnett, 319
F.3d 1254, 1273 (10th Cir. 2003). Further, “the trial judge's view of the
proffer, which was seconded by the [state] Court of Appeals, is entitled to
great deference.” Morris, 319 F.3d at 1273. Under 28 U.S.C. § 2254(e)(1):
In a proceeding instituted by an application for a writ of habeas corpus
by a person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.
Petitioner contends that once the court ruled that the expert’s
methodology comported with the Frye standard, everything else was a
question of weight and credibility for the jury. But under Kansas law, expert
testimony that lacks proper foundation is inadmissible. See e.g., Marshall v.
13
Mayflower Transit, Inc., 249 Kan. 620 (1991); K.S.A. 60-456(b)(1) (expert
testimony in the form of opinions or inferences must be based on “facts or
data perceived by or personally known or made known to the witness at the
hearing.”) Similarly, expert testimony that is not necessary or helpful to the
jury is inadmissible. State v. Cooperwood, 282 Kan. 572, 576 (2006). Here,
no evidence suggested that Petitioner took methamphetamine before the
crimes occurred, yet temporally close enough to the crimes to have affected
his intent or premeditation. Even if the urine screening had been admitted, it
remained equally likely that Petitioner took methamphetamine after the
crimes occurred (around 4:00 a.m.) but before his arrest (around 8:00
a.m.). No factual basis for the proffered testimony was established.
The evidentiary rules applied by the trial court serve the interests of
fairness and reliability, and are not arbitrary or disproportionate to the
purposes they are designed to serve. See Kuhn v. Sandoz Pharmaceuticals
Corp., 270 Kan. 443, 454-455 (2000); Holmes v. South Carolina, 547 U.S.
319, 324 (2006). Petitioner cites no Supreme Court precedent governing the
permissibility of a trial court's discretionary decision to exclude expert
testimony under an otherwise valid evidentiary rule. The Kansas Supreme
Court’s determination that Dr. Martinez’s proffered testimony was
inadmissible was based on a reasonable determination of the facts, and was
not an unreasonable application of United States Supreme Court precedent.
No basis for habeas relief has been shown.
14
V. Failure to Instruct on Voluntary Intoxication
Petitioner additionally claims that the district court committed
constitutional error in failing to instruct the jury on his defense of voluntary
intoxication.
Petitioner’s counsel requested a voluntary intoxication instruction, but
the district court found the evidence insufficient to warrant it. The court
noted that Sparks, who was in Petitioner’s presence the night of the crime,
was not aware of his drinking or using drugs. And Bayless and Walton spoke
with Petitioner for several hours that evening, yet observed no sign of any
impairment from alcohol or drugs, and believed that Petitioner clearly
understood what was going on and communicated coherently.
On appeal, the Kansas Supreme Court found the refusal to instruct on
voluntary intoxication to be error because the district judge “weighed the
evidence supporting and undercutting the instruction rather than simply
determining whether the minimum evidence necessary to require the
instruction was present.” Moore, 287 Kan. at 134. The Supreme Court found
sufficient circumstantial evidence that Petitioner was under the influence at
the time of the crimes, based on the following: Petitioner’s residence was
littered with empty and full beer cans and liquor bottles; Petitioner had a
history of alcohol and drug abuse and his behavior became mean, violent,
and paranoid when he was under the influence; and Petitioner behaved in a
mean, violent, and paranoid manner on the night of the crimes. Id.
15
Nonetheless, the Kansas Supreme Court found that even if the failure
to instruct on voluntary intoxication was constitutional error, it was harmless
error, stating:
… given the enormous weight of the evidence against Moore, we
hold that the judge's error in refusing to give a voluntary intoxication
instruction error was harmless. This is true regardless of whether we
view the error as one of constitutional magnitude, infringing on
Moore's right to present his theory of defense, or as nonconstitutional
trial error. Compare State v. Atkinson, 276 Kan. 920, 925, 80 P.3d
1143 (2003) (constitutional error harmless if appellate court “willing to
declare beyond a reasonable doubt that the error had little, if any,
likelihood of having changed the result of the trial”), and K.S.A. 60–
261 (reversal not required unless refusal to grant it “inconsistent with
substantial justice,” error affected party's “substantial rights”); see
State v. Jones, 277 Kan. 413, 423, 85 P.3d 1226 (2004). Moore made
repeated and cogent … statements about his expectations for the
evening, about a “bloodbath,” and about his demise in a “blaze of
glory.” Those expectations were, at least in part, realized.
Moore, 287 Kan. at 134-135.
In a habeas corpus case, the Court assesses the prejudicial impact of a
state court's constitutional error under the Brecht standard. Fry v. Pliler, 551
U.S. 112, 119-121 (2007). That standard asks whether the alleged error had
a “substantial and injurious effect or influence in determining the jury‘s
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 627 (1993).
Under Kansas law, the Petitioner’s intoxication could have been
considered only in determining whether he lacked the intent or
premeditation required for his charges of capital murder and attempted
capital murders. Given the nature and weight of the evidence about
Petitioner’s actions and statements surrounding the commission of the
16
crimes, including his stated expectations that the evening would involve a
“bloodbath” and his demise in a “blaze of glory,” the Court finds that the
district court’s failure to instruct on voluntary intoxication, even assuming it
rose to the level of constitutional error, did not have a substantial or
injurious effect or influence in determining the jury‘s verdict. The Kansas
Supreme Court reasonably found that the weight of the evidence against the
Petitioner was “enormous.” Its determination that the error was harmless is
consistent with the Brecht standard, and was not an unreasonable
application of clearly established federal law or an unreasonable
determination of the facts in light of the evidence presented.
The Court rejects Petitioner’s assertion in his traverse that the error in
not permitting his defense of voluntary intoxication was structural error
rather than harmless error. See Rose v. Clark, 478 U.S. 570, 576-79 (1986).
… if the defendant had counsel and was tried by an impartial
adjudicator, there is a strong presumption that any other errors that
may have occurred are subject to harmless-error analysis. The thrust
of the many constitutional rules governing the conduct of criminal
trials is to ensure that those trials lead to fair and correct judgments.
Where a reviewing court can find that the record developed at trial
establishes guilt beyond a reasonable doubt, the interest in fairness
has been satisfied and the judgment should be affirmed. As we have
repeatedly stated, “the Constitution entitles a criminal defendant to a
fair trial, not a perfect one.”
Rose, 478 U.S. at 579 (citations omitted).
VI. Ineffective Assistance of Counsel
Petitioner also contends that his trial counsel was constitutionally
ineffective in the following respects: 1) failing to continue Petitioner’s trial to
17
have blood samples tested; 2) presenting intentionally false testimony
regarding the existence of blood samples; 3) failing to support Petitioner’s
defense of voluntary intoxication; and 4) failing to support Petitioner’s
theory of imperfect self-defense. Petitioner additionally contends that
counsel’s cumulative error warrants relief.
To prevail on a claim for ineffective assistance of counsel, Petitioner
must show that counsel's performance was deficient and that the deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). In reviewing for deficient performance, “a court must
indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.” Id. at 689. A petitioner
demonstrates deficient performance by showing counsel's representation
“fell below an objective standard of reasonableness.” Id. at 688. To establish
prejudice, a petitioner “must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.” Id. at 694.
A. Procedural Default
Respondents contend that the following claims are procedurally
defaulted because they were not included in Petitioner’s direct appeal or in
his K.S.A. 60-1507 proceeding: 1) Petitioner’s claim that his counsel failed to
continue petitioner’s trial; 2) Petitioner’s claim that his counsel presented
intentionally false testimony; and 3) Petitioner’s claim of cumulative error.
18
Petitioner responds that the first two were included in his claims of error
regarding his voluntary intoxication defense, and that the third (cumulative
error) need not be raised to a state court, as it is merely a standard for
review.
Petitioner states that the record “establishes that petitioner argued
that trial counsel failed to know that blood samples had been collected from
his client and he further told the court that it was his understanding that
there wasn’t any blood samples collected.” Dk. 11, p. 11. Petitioner states
he further argued that because of trial counsel’s lack of knowledge, he failed
to request a continuance to get the blood samples tested, which would have
better supported his voluntary intoxication theory of defense.” Id. But
Petitioner fails to cite the record in support of these claims, or to show the
Court these were raised as separate issues for review by the state court.
Because Petitioner has not shown that he presented these claims for
review by the highest state court, federal habeas review of these claims is
barred unless Petitioner demonstrates both cause for his procedural default
and resulting prejudice, or that a fundamental miscarriage of justice will
result if his claims are not considered. See Coleman v. Thompson, 501 U.S.
722, 749 (1991).
Petitioner does not allege or demonstrate cause for his failure to
present these claims to the state court. See Coleman v. Thompson, 501 U.S.
722, 750 (1991) (finding that “ ‘cause’ under the cause and prejudice test
19
must be something external to the petitioner.”) Neither has Petitioner shown
actual prejudice. The “cause and prejudice” exception is thus not applicable.
Nor has Petitioner demonstrated that he qualifies for review under the
fundamental miscarriage of justice exception. Herrera v. Collins, 506 U.S.
390, 403–04 (1993). To be excused from procedural default on the basis of
this exception, petitioner must supplement his constitutional claim with a
“colorable showing of factual innocence.” Kuhlmann v. Wilson, 477 U.S. 436,
454 (1986); Brecheen v. Reynolds, 41 F.3d 1343, 1356 (10th Cir. 1994),
cert. denied, 515 U.S. 1135 (1995). Petitioner has not alleged, and the
record would not support, a colorable showing of factual innocence.
Additionally, as for Petitioner’s claim of cumulative error, that analysis
applies only where the record reveals two or more actual errors, and the
entire trial was so fundamentally unfair as to constitute a violation of due
process rights. Hoxsie v. Kerby, 108 F.3d 1239, 1245 (10th Cir. 1997).
Below, the Court finds that Petitioner has not established any prejudicial
errors in his conviction or sentence, thus no cumulative error can be shown.
B. Failing to Support Petitioner’s Theory of Voluntary
Intoxication
Petitioner primarily contends that his trial counsel was deficient for
failing to test his blood to determine the amount of methamphetamine in his
system shortly after he was arrested. Petitioner believes that had his blood
been tested for methamphetamine, had the results of that test been
20
admitted, had the results shown that he was voluntarily intoxicated during
the crimes, and had an expert so testified, the Court would then have
instructed the jury on that theory and the jury may have convicted him of
voluntary manslaughter instead of capital murder.
The Kansas Court of Appeals held that even if trial counsel was
deficient in failing to test Petitioner’s blood for methamphetamine, Petitioner
suffered no prejudice as a result “because the evidence against him was so
overwhelming.” Moore, 2011 WL 2555655 at *3. The court observed that
Petitioner was “unable to establish, given the overwhelming evidence against
him as highlighted by the Supreme Court in Moore, that, but for counsel’s
errors, there is a reasonable probability that the result of the trial would
have been different.” Id.
Petitioner’s burden on this issue is to show that there is no reasonable
argument that his trial counsel satisfied Strickland's deferential standard.
Harrington v. Richter, ––– U.S. ––––, ––––, 131 S.Ct. 770, 788, 178 L.Ed.2d
624 (2011). See White v. Medina, 2012 WL 401518, *2 (10th Cir. 2012).
Petitioner does not allege that at any time when a blood test would have
been timely enough to be relevant, he asked his attorney to conduct such a
test, or told his attorney he was voluntarily intoxicated at the time of the
crimes, or told his attorney facts which may have raised a reasonable
suspicion that he had taken methamphetamine. See Strickland, 466 U.S. at
691 (noting that counsel's actions may be judged in light of the information
21
provided to him by the defendant). This, coupled with the enormous weight
of the evidence against the Petitioner as noted by both the Kansas Court of
Appeals and the Kansas Supreme Court, shows the objective reasonableness
of the Kansas Court’s decision that Strickland’s standard was satisfied.
Petitioner concedes that the evidence that he shot the officers was well
established, making his mental state the key issue in the case. Petitioner
appears to believe that evidence of his methamphetamine level, if admitted,
would have negated his intent to shoot the officers. But the statements
made by the Petitioner to Walton, Sparks, and Taylor over several hours
during the course of the crimes on April 9th were so clear and so direct as to
demonstrate that even if Petitioner were high on methamphetamine at the
time of the crimes, he nonetheless retained the ability to formulate the
intent and premeditation which were essential elements of those crimes. The
Kansas Supreme Court’s finding that Petitioner was not prejudiced by
counsel’s actions or inactions was thus reasonable.
C. Failing to Support Petitioner’s Theory of Imperfect Selfdefense.
One of Petitioner’s theories at trial was that he had an honest but
unreasonable belief that he would be shot to death by police if they entered
his home or he left it. Had that theory succeeded, Plaintiff could have been
convicted of voluntary manslaughter instead of capital murder. See Moore,
287 Kan. at 131, citing State v. Carter, 284 Kan. 312, 326 (2007)
22
(“imperfect self-defense is not a defense to criminal liability; it is a lesser
degree of homicide.”)
At the time of Petitioner’s trial, K.S.A. § 21-3403 defined voluntary
manslaughter to include “the intentional killing of a human being committed:
... (b) upon an unreasonable but honest belief that circumstances existed
that justified deadly force under K.S.A. 21–3211....” That statute provided:
A person is justified in the use of force against another when and to
the extent it appears to such person and such person reasonably
believes that such force is necessary to defend such person or a third
person against such other's imminent use of unlawful force.
K.S.A. 21–3211 (emphasis added). Moore did not testify at trial, but argued
that sufficient evidence of his “unreasonable but honest belief” was
presented through other witnesses, namely Taylor and Sparks.
1. Trial Proceedings
The trial court refused to instruct on the imperfect self-defense theory,
stating:
… I don’t have any testimony that he had an honest belief. I
have testimony that, after the incident, he did tell Detective Walton
that he was acting in self-defense. But I find you can’t have an honest
belief under these circumstances that you’re acting in self-defense. He
knew – he knew why [the officers] were there, he knew what was
going to happen, and he’s not entitled to that instruction. There was
no honest belief of self-defense.
Trans., Case 06-dr-700, Vol. III, p. 122-23.
2. Kansas Supreme Court Ruling
23
The Kansas Supreme Court rejected Petitioner’s related claim that the
judge erred in failing to instruct the jury on the lesser included offense of
voluntary manslaughter based on imperfect self-defense, stating:
In order for him to be convicted of voluntary manslaughter
based on imperfect self-defense, the jury would have had to conclude
the circumstances could warrant an honest belief that the uniformed
officers who entered Moore's home were aggressors threatening
imminent use of “unlawful” force. … Moore's jury could not reasonably
do so on the record before us.
Moore, 287 Kan. at 131.
The court explained:
There is no question that [Petitioner] appreciated that the persons at
his door were law enforcement officers, that he appreciated the
reasons they had gathered outside his home and desired to enter it,
and that Sparks was a hostage until virtually the same moment that
the police came through the door. [Petitioner] fired at the officers in
spite of his undeniable knowledge of their identity and purpose. Under
these circumstances, [Petitioner] simply could not have harbored an
honest but unreasonable belief that the deadly force was necessary.
Moore, 287 Kan. at 133.
3. Kansas Court of Appeals Review
The Kansas Court of Appeals, in reviewing Petitioner’s § 60-1507
appeal, described Petitioner’s deficient counsel argument as follows:
[Petitioner] argues that his attorney was ineffective when he failed to
investigate why Deputy Kurt A. Ford (who was killed) was carrying a
rifle magazine that was missing several rounds. If it could be
determined that Ford fired the first shot, the jury would be more likely
to believe that [Petitioner] had a reasonable belief that he needed to
shoot Ford in self-defense. Therefore, [Petitioner argues his] attorney
was ineffective for not investigating Ford's weapon.
24
Moore, 2011 WL 2555655 at *3. This is the same argument which Petitioner
now makes to this Court.
The Kansas Court of Appeals found “absolutely no evidence in the
record to suggest that Ford fired his rifle at all.” Moore, 2011 WL 2555655 at
*3. It noted that Ford was carrying a .223 caliber rifle, but the only casings
found were fired from a .45 caliber pistol, a .380 caliber pistol, and a .40
caliber firearm.
4. AEDPA Review
The Kansas Court of Appeals applied Strickland, and found neither
deficient performance by Petitioner’s counsel, nor prejudice to Petitioner. In
addition to the facts noted above, the record reflects that Deputy Chris Eilert
testified that Ford did not fire his weapon, and that no contradictory
evidence was presented. Petitioner does not allege that he told his counsel
that he saw or heard Ford fire his weapon, or gave counsel any other
information that would have warranted an investigation of Ford’s weapon.
Under these circumstances, which show neither deficient performance by
counsel, nor prejudice to the Petitioner, no objective unreasonableness has
been shown. The Court of Appeals’ application of Strickland was reasonable,
thus this claim does not warrant federal habeas relief.
VII. Evidentiary Hearing
The court finds no need for an evidentiary hearing. “[A]n evidentiary
hearing is unnecessary if the claim can be resolved on the record.” Anderson
25
v. Attorney Gen. of Kansas, 425 F.3d 853, 859 (10th Cir. 2005); see Schriro
v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes the
applicant's factual allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary hearing.”). The record in this
case refutes Petitioner's allegations and otherwise precludes habeas relief.
VIII. Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Proceedings states that
the court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant. “A certificate of appealability may issue
... only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district court has
rejected the constitutional claims on the merits, a petitioner makes that
showing by demonstrating that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). See United States v. Bedford, 628 F.3d
1232 (10th Cir. 2010). Petitioner has not met this standard as to any issue
presented, so no certificate of appealability shall be granted.
IT IS THEREFORE ORDERED that the petition for habeas corpus relief
under 28 U.S.C. §2254 (Dk. 1) is denied.
Dated this 7th day of November, 2012 at Topeka, Kansas.
s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
26
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?