Smith v. Bowersox

Filing 11

MEMORANDUM: For the reasons stated above, the petition of Derrick Smith for a writ of habeas corpus is denied. Because petitioner has made no substantial showing of the denial of a constitutional right, the court does not issue a certificate of appealability. 28 U.S.C. § 2253(c)(2). An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 4/8/2014. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DERRICK SMITH,
Petitioner,
v.
MICHAEL BOWERSOX,
Respondent.

)
)
)
)
)
)
)
)
)

No. 4:12 CV 2089 DDN

MEMORANDUM
This action is before the court upon the petition of Missouri state prisoner Derrick
Smith for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) The parties
have consented to the exercise of plenary authority by the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 5.) For the reasons set forth
below, the petition for a writ of habeas corpus is denied.

I. BACKGROUND
On October 30, 2008, a jury in the Circuit Court of the City of St. Louis found
petitioner guilty of three counts of the class B felony first-degree assault (Counts III, V,
VII), two counts of the class A felony first-degree assault (Counts IX and XI), and five
counts of armed criminal action (Counts IV, VI, VIII, X, and XII).1 (Doc. 10, Ex. B at 23, 80-89.) On December 4, 2008, the circuit court sentenced petitioner as a prior and
persistent offender to thirty years imprisonment for each of the three counts of the class B
felony first-degree assault (Counts II, V, and VII), thirty years imprisonment for both

1

The jury did not reach a verdict on Count I charging first-degree murder or alternatively
second-degree murder. The jury also failed to reach a verdict on Count II, the associated
charge of armed criminal action. (Doc. 10, Ex. A at 349.) A mistrial was declared on
those counts and the State later dismissed them. (Id., Ex. B at 90, 103.)

counts of the class A felony first-degree assault (Counts IX and XI), and thirty years for
each count of armed criminal action (Counts IV, VI, VIII, X, and XII). (Id. at 104-12.)
The circuit court further ordered that the sentences for Counts III, V, VI, VII, VIII, IX, X,
XI, and XII run concurrently and Count IV run consecutively to the others for an
aggregate sentence of sixty years imprisonment. (Id.) On November 17, 2009, the
Missouri Court of Appeals affirmed the judgment on direct appeal. (Id., Ex. E); State v.
Smith, 297 S.W.3d 641 (Mo. Ct. App. 2009).
On March 1, 2010, petitioner filed in the circuit court a pro se motion for postconviction relief under Missouri Supreme Court Rule 29.15. (Id., Ex. F at 3-41.) On
June 9, 2010, with the assistance of appointed counsel, petitioner filed an amended
motion for post conviction relief. (Id. at 42-114.) The circuit court denied petitioner’s
motion on June 3, 2011. (Id. at 115-22.) On March 20, 2012, the Missouri Court of
Appeals affirmed the circuit court’s denial of the motion. (Id., Ex. I.); Smith v. State, 388
S.W.3d 178 (Mo. Ct. App. 2012).
On November 7, 2012, petitioner filed the instant petition for a writ of habeas
corpus under 28 U.S.C. § 2254. (Doc. 1.)
In denying petitioner’s direct appeal, the Missouri Court of Appeals described the
facts, viewed in the light most favorable to the verdict, as follows:
On August 1, 2003, Marlene Freeman (Freeman) received a phone
call at the beauty salon where she worked regarding shots being fired on
her front porch. Freeman testified that she “immediately” ran out of the
salon, jumped in her car, and arrived home approximately two minutes
later. As she was running up on her front porch, Freeman saw her son,
Vaughn, lying in the doorway. Vaughn had been shot in the side and kept
telling Freeman “to call the ambulance.” Freeman testified that Vaughn
also kept repeating, “I’m going to die, don’t let me die.” Vaughn told
Freeman that “[petitioner] shot him.” As a result of the shooting, Vaughn
had to undergo emergency surgery and had part of his colon removed.
Officer Rodney Thomas (Officer Thomas), who was working as an
evidence technician for the City of St. Louis Police Department, arrived at
Freeman’s residence to recover evidence from the shooting. Officer
Thomas testified he recovered from the area five shell casings, which were
9-millimeter casings.
-2 

On March 20, 2004, Freeman was working at another beauty salon
in the area when she heard gunshots and ran out the door of the beauty
salon. Freeman testified she saw the car that Vaughn was driving coming
down the street toward the beauty salon and she saw [petitioner] running in
the middle of the street toward a different car. When Vaughn got out of his
car, he told Freeman that [petitioner] had "just" shot him in the back.[2]
Doug Eatherton (Officer Eatherton), who was working as an
evidence technician for the City of St. Louis Police Department, arrived at
the area where Vaughn was shot to recover evidence. Officer Eatherton
testified he took pictures of a car that had its rear window “shot out.”
Officer Eatherton further testified he recovered a bullet from the steering
wheel air bag of the car and an unfired shell cartridge from inside of the
car. Officer Eatherton testified he also found five shell casings on the
street. Most of the shell casings recovered by Officer Eatherton were 9millimeter. The unfired cartridge was a .357 magnum cartridge.
In the late evening hours of April 10, 2004, George Wilson (Wilson)
was at the home of Damon Johnson (Johnson) to watch a boxing match on
television. Shortly after the boxing match ended, two friends, Wright and
Courtney Moore (Moore), arrived and talked with Wilson about plans for
the evening. Moore then gave Wilson a ride to pick up a pizza while
Wright got into his car to go home. At the corner, Moore turned one way
and Wright turned to go in the opposite direction. While Moore and
Wilson were stopped at a traffic light, they saw [petitioner], who was
running from his yard toward Moore’s car and carrying two guns, which
were “a 9 and a .45.” [Petitioner] shot at Moore’s car, and Moore shot back
at [petitioner]. Moore and Wilson “sped” off. Shortly after Wilson got
home, he learned that Wright had been shot in his vehicle.
In the early morning hours of April 11, 2004, officers responded to
the scene of a shooting where Wright was found dead inside a motor
vehicle. Officer Michael Growe (Officer Growe), an evidence technician,
testified he went to the scene and recovered three .45 caliber shell casings.
An autopsy revealed that Wright had three gunshot wounds. The three

2

The Missouri Court of Appeals included the following footnote 2: "At some point
between the two shootings, Freeman encountered [petitioner] at a night club. [Petitioner]
told Freeman: 'You keep that little n----r hid good, you better keep him hid good cause if
I ever see him, I’m going to kill him.' The trial court allowed the statements to be
admitted at trial over defense counsel’s objections that they were more prejudicial than
probative." (Doc. 10, Ex. E at 3 n.2).
-3 

bullets recovered from Wright’s body and clothing were retained as
evidence and submitted for laboratory analysis.
Later on the morning of April 11, 2004, Wilson, Ronnell Mays
(Mays), and John Cancer (Cancer) were standing near the street discussing
the murder from the previous evening. While standing there, Cancer saw
[petitioner] coming around the corner with two guns in his hands. Cancer
suddenly got a “look” and yelled “get out of there.” Wilson testified he
turned around and saw [petitioner] with the same guns as those he had the
previous evening. Mays testified he also turned around and saw
[petitioner]. Both Mays and Cancer testified that [petitioner] began to fire
his guns. Wilson, Cancer, and Mayes testified that they began to run and
were able to escape to safety.[3]
Officer Mark Oman (Officer Oman), an evidence technician,
testified he arrived at the scene of the April 11, 2004, shooting and, after
searching the area, found a possible bullet hole in a parked vehicle. Officer
Oman found seven 9-millimeter shell casings, one .45 caliber shell casing,
and a bullet found lodged in the cooler inside that parked vehicle.
Officer David Mendez (Officer Mendez), who worked in the firearm
section of the laboratory division of the City of St. Louis Police
Department, compared the casings found during this case. Officer Mendez
testified that the .45 caliber casings from the scene of the shooting of
Wright were fired from the same gun as the .45 caliber casing from the
scene of the shooting of Mays, Wilson, and Cancer. Officer Mendez also
testified that all of the 9-millimeter casings from the scene of both
shootings of Vaughn were fired from the same gun as all of the 9millimeter casings from the scene of the shooting of Mays, Wilson, and
Cancer.
Following the close of all evidence, the jury convicted [petitioner]
on Counts III-XII and hung on Counts I and II.[4]
(Doc. 10, Ex. E at 2-5).

3

The Missouri Court of Appeals included the following footnote 3: "As of the time of
this incident, Wilson had not yet reported the incident involving himself, Moore, and
[petitioner] from the previous evening." (Doc. 10, Ex. E at 5 n.3).
4

The Missouri Court of Appeals included the following footnote 4: "Later, the state filed
a memorandum to nolle prosequi Counts I and II." (Doc. 10, Ex. E at 5 n.4).
-4 

II. PETITIONER’S GROUNDS FOR FEDERAL HABEAS RELIEF
Petitioner alleges five grounds for relief in this habeas action:
(1) The trial court erred in denying petitioner’s motion to sever Counts IVIII from Counts IX-XII.
(2) The trial court violated petitioner’s Due Process Clause rights and
Confrontation Clause rights by permitting Marlene Freeman to testify as to
hearsay statements made by Tommie Vaughn as those statements were not
admissible as excited utterances.
(3) His trial counsel rendered constitutionally ineffective assistance by
failing to call an alibi witness to testify in his behalf.
(4) His trial counsel rendered constitutionally ineffective assistance by
failing to properly challenge in-court identification by John Cancer.
(5) His appellate counsel rendered constitutionally ineffective assistance by
failing to appeal the trial court’s evidentiary ruling allowing George Wilson
to testify about an uncharged crime implicating petitioner.
(Doc. 1 at 5-12, 16-27.)
Respondent contends that Grounds 1 and 2 are not cognizable grounds for habeas
relief and that Grounds 2, 3, 4, and 5 are meritless.

III. EXHAUSTION AND PROCEDURAL BAR
Congress requires that state prisoners exhaust their state law remedies for claims
made in federal habeas corpus petitions under 28 U.S.C. § 2254.

See 28 U.S.C.

§ 2254(b)(1)(A). A state prisoner has not exhausted his remedies “if he has the right
under the law of the State to raise, by any available procedure, the question presented.”
28 U.S.C. § 2254(c). As discussed above, petitioner filed a direct appeal, a motion for
post-conviction relief, and appealed the denial of his motion for post-conviction relief.

-5 

Exhaustion in the sense that petitioner now has no remaining procedure for
bringing a claim to the state court does not, however, satisfy the federal statutory
requirement. Rather, a petitioner must have fairly presented the substance of each federal
ground to both the trial and appellate courts. Anderson v. Harless, 459 U.S. 4, 6 (1982).
If he has not done so and has no remaining procedure for doing so because he has
defaulted on the legitimate requirements of the otherwise available procedures, any such
ground for federal habeas relief is barred from consideration by the federal courts. Grass
v. Reitz, 643 F.3d 579, 584 (8th Cir. 2011); King v. Kemna, 266 F.3d 816, 821 (8th Cir.
2001) (en banc); Sweet v. Delo, 125 F.3d 1144, 1149-50 (8th Cir. 1997). The doctrine of
procedural bar applies whether the default occurred at trial, on appeal, or during state
court collateral attack. See Murray v. Carrier, 477 U.S. 478, 490-92 (1986).
Petitioner raised Ground 1 at the trial level by submitting a motion for severance
of Counts IX-XII from Count I-VIII, and the trial court denied the motion. (Doc. 10, Ex.
A at 23; id., Ex. B at 12-14.) Petitioner presented Ground 1 to the Missouri Court of
Appeals. (Id., Ex. C at 12-13, Ex. E. at 5-7.) Ground 1 is not procedurally barred.
Petitioner raised Ground 2 at the trial level by objecting to the testimony as
hearsay and as a violation of petitioner’s right to confrontation when the evidence was
offered; the trial court overruled the objections. (Id., Ex. A at 145-47, 149, 151-52.)
Petitioner presented Ground 2 to the Missouri Court of Appeals. (Id., Ex. C at 14-15, 2733, Ex. E at 7-9.) Ground 2 is not procedurally barred.
Petitioner raised Ground 3 in his amended post-conviction relief motion, and the
motion court ruled that the claim was without merit. (Id., Ex. F at 4, 43-45, 118.)
Petitioner presented Ground 3 to the Missouri Court of Appeals in his post-conviction
relief appeal. (Id., Ex. G at 14-15, 19-25, Ex. I at 3-4.) Ground 3 is not procedurally
barred.
Petitioner raised Ground 4 in his amended post-conviction relief motion, and the
motion court ruled that the claim was without merit. (Id., Ex. F at 46-47, 63-71, 119.)
Petitioner presented Ground 4 to the Missouri Court of Appeals in his post-conviction
relief appeal. (Id., Ex. G at 18, 36-44, Ex. I at 5-6.) Ground 4 is not procedurally barred.
-6 

Petitioner raised Ground 5 in his amended post-conviction relief motion, and the
motion court ruled that the claim was without merit. (Id., Ex. F at 45-46, 54-63, 119.)
Petitioner presented Ground 5 to the Missouri Court of Appeals in his post-conviction
relief appeal. (Id., Ex. G at 16-17, 26-35, Ex I at 6-7.) Ground 5 is not procedurally
barred.

IV. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (AEDPA) requires that habeas
relief may not be granted by a federal court on a claim that has been decided on the
merits by a state court unless that adjudication:
(1)

resulted in a decision 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)

resulted in a decision 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)(1)-(2).
A state court’s decision is contrary to clearly established federal law if it “arrives
at a conclusion opposite to that reached by [the] Court on a question of law or . . . decides
a case differently than [the] Court has on a set of materially indistinguishable facts.”
Thaler v. Haynes, 130 S.Ct. 1171, 1174 (2010) (per curiam) (citation omitted). This
standard is difficult to meet because habeas corpus “is a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for ordinary error
correction through appeal.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (citation
omitted). A state court’s decision involves an “unreasonable application” of clearly
established federal law if “the state court identifies the correct governing legal principle
from [the] Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case.” Thaler, 130 S.Ct. at 1174.

-7 

A state court’s factual findings are presumed to be correct.

28 U.S.C. §

2254(e)(1); Wood v. Allen, 130 S.Ct. 841, 845 (2010). Review under § 2254(d)(1) is
limited to the record before the state court that adjudicated the claim on the merits.
Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). Clear and convincing evidence that
factual findings lack evidentiary support is required to grant habeas relief. 28 U.S.C. §
2254(e)(1); Wood, 130 S.Ct. at 845.
V. DISCUSSION
A. Ground 1
In Ground 1 petitioner argues that the trial court erred in denying the motion to
sever Counts IX-XII from Counts I-VIII. Specifically, petitioner argues that the counts
were improperly joined, because the different charges involved different complaining
witnesses. He also argues that the trial court should have severed the counts due to the
substantial prejudice for Counts IX-XII resulting from the strength of the prosecution’s
case for Counts II-VIII.
The issues of joinder and severance are matters of state law. “[F]ederal habeas
corpus relief does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67
(1991); 28 U.S.C. § 2254. “[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state law questions.” Estelle, 502 U.S. at 67-68. Rather,
“[t]o obtain federal habeas corpus relief, the joinder “must actually render petitioner's
state trial fundamentally unfair and hence, violative of due process.”

Robinson v.

Wyrick, 735 F.2d 1091, 1094 (8th Cir. 1984) (quoting Tribbitt v. Wainwright, 540 F.2d
840 (5th Cir. 1976), cert. denied, 430 U.S. 910 (1977)).
Under Missouri law, “Joinder addresses the issue of what crimes can be charged in
a single proceeding.” State v. Chambers, 234 S.W.3d 501, 508 (Mo. Ct. App. 2007).
Missouri courts may join:
[a]ll offenses that are of the same or similar character or based on two or
more acts that are part of the same transaction or on two or more acts or
transactions that are connected or that constitute parts of a common scheme
or plan . . . .

-8 

Mo. Sup. Ct. R. 23.05. Petitioner argues that the court should not have joined the charges
because the charges involved different witnesses. However, petitioner’s argument does
not detract from the similar character of his charged offenses. See State v. Langston, 889
S.W.2d 93, 96 (Mo. Ct. App. 1994). The state court did not err in joining the charges.
“Joinder and severance are distinct issues for review.” State v. Langston, 889
S.W.2d 93, 96 (Mo. Ct. App. 1994).
The key question in determining whether severance should be granted is
one of prejudice. The defendant must make a particularized showing of
substantial prejudice. There must be both an abuse of discretion and a clear
showing of prejudice before a denial of severance can be reversed. In
determining prejudice the court should consider, among other relevant
factors, the number of offenses charged, the complexity of the evidence,
and whether the trier of fact is able to distinguish the evidence and apply
the law intelligently to each offense.
State v. Hughes, 787 S.W.2d 802, 804 (Mo. Ct. App. 1990).
In petitioner's case, the Missouri Court of Appeals ruled:
Here, the joined offenses are the same: assault in the first degree
(and a murder resulting from an assault) and armed criminal action. Three
of the incidents occurred within several weeks of each other while the
remaining assault involved the same victim as one of the other assaults. All
of the offenses occurred within several blocks of each other. In the
assaults, the same gun was used. Also, the same gun used in one of the
assaults was used in the murder. Based on the State's evidence, joinder was
proper.
Finally, trying the offenses together did not result in substantial
prejudice. Contrary to [petitioner's] assertions that the trial court abused its
discretion in overturning [petitioner's] motion to sever "because the number
of charged offenses and the evidence's complexity," the fact that the jury
failed to reach a verdict on Counts I and II demonstrates that they did keep
the incidents separate. 6 [Footnote 6: "As part of its instructions, the jury
was directed that each count was to be considered separately."] We find no
abuse of discretion. Point I is denied.
(Doc. 10, Ex. E at 7.)
As stated, the merits of petitioner's Ground 1 depend upon whether his right to due
process was violated; this depends upon whether the state trial court failed to exercise
-9 

sound discretion in ruling this ground and whether that ruling made a substantial
difference in the outcome of his trial. Robinson v. Wyrick, 735 F.2d at 1094. Clearly,
petitioner has failed on each aspect of this ground for relief. The jury instructions
directed that each count was to be deliberated upon separately, and the jury’s failure to
reach a verdict on Count I and Count II demonstrates that the jury deliberated on the
incidents separately as instructed. (Doc. 10, Ex. A at 349, Ex. B at 57, 90.) Moreover,
the evidence adduced at trial was not complex, consisting of the testimony of
eyewitnesses, police officers forensic examiners, and ballistics experts. (Id., Ex. A.)
Therefore, the state courts did not unreasonably apply federal law by concluding that the
trial court did not abuse its discretion and that no prejudice resulted from trial court’s
failure to sever the charges. Ground 1 is without merit.

B. Ground 2
Petitioner argues that the trial court erred by allowing Marlene Freeman to testify
to hearsay statements made by Vaughn, her son, as those statements were not admissible
as excited utterances and that the court violated petitioner’s due process right to a fair
trial and right to confrontation.
During the trial Freeman testified to two separate statements made by her son
Vaughn following two different shootings. Freeman testified that on August 1, 2003
immediately after being shot in the side, Vaughn repeatedly told her that he was going to
die and that petitioner shot him. (Doc. 10, Ex. A at 148-49.) On March 20, 2004,
Vaughn was the victim to a second shooting and prior to receiving medical assistance,
told Ms. Freeman that petitioner shot him again. (Id., at 151.)
Petitioner argues that Ms. Freeman’s testimony violated his rights under the Due
Process Clause as her testimony contained hearsay statements made by Vaughn and those
statements were not admissible as excited utterances.
The application of the rules of evidence is a matter of state law. Under AEDPA
habeas review, to determine whether a state court committed error by admitting evidence,
courts consider whether the state court’s decision was an objectively unreasonable
-10 

application of the Due Process Clause rather than whether the evidence was properly
admitted under state law. Middleton v. Roper, 498 F.3d 812, 820 (8th Cir. 2007). If such
error is shown, a petitioner must further show that the asserted error was “so egregious
that [it] fatally infected the proceedings and rendered his entire trial fundamentally
unfair.” Hamilton v. Nix, 809 F.2d 463, 470 (8th Cir. 1987). To meet this burden, a
petitioner must show a reasonable probability that the verdict would have been different
absent the asserted error. Id.
At trial, petitioner objected to Ms. Freeman’s testimony regarding Vaughn’s
statements following the shootings as hearsay. The trial court admitted the challenged
statements under the excited utterance exception to the hearsay rule. (Doc. 10, Ex. A at
147.) The excited utterance exception applies when a startling event or condition occurs,
the statement is made while the declarant is still under the stress of the excitement caused
by the event and has not had the opportunity to fabricate the story, and the statement
relates to the startling event. State v. Kemp, 212 S.W.3d 135, 145 (Mo. banc 2007). In
determining whether a statement is an excited utterance, the trial court considers many
factors including the time between the event and the statement, whether the statement
was in response to a question, whether the statement is self-serving, and the declarant’s
physical and mental condition at the time of the statement. Id.
The state appellate court upheld the trial court’s admission of Vaughn’s statements
under the excited utterance exception the hearsay rule. The court concluded that “[f]rom
the record it was reasonable for the trial court to conclude that both statements were
spontaneous and made shortly after the incidents in question under circumstances
indicating that Vaughn was still under stress of being shot.” (Doc. 10, Ex. E at 9.)
As to the shooting occurring in August 2003, there is no indication that Ms.
Freeman nor anyone else asked Mr. Vaughn to name the shooter. Freeman testified that
she went home immediately after being informed of the shooting involving Mr. Vaughn.
(Doc. 10, Ex. A at 144.) Upon arriving home she encountered Vaughn on her porch, and
he mentioned several times he was going to die and that petitioner had shot him. (Id., at
148-149.) The Missouri Court of Appeals noted that “it was reasonable for the trial court
-11 

to infer that a short period of time had passed from Vaughn being shot to the statements
made to Freeman and that these statements qualified as excited utterances.” (Id., Ex. E at
9.) In regards to the other factors, Ms. Freeman testified that Vaughn was extremely
distressed after the shooting and while calling for the paramedics she tried to calm him.
(Id., Ex. A at 148-149.) Furthermore, upon arriving to the hospital, Vaughn underwent
immediate surgery for about seven hours to remove part of his intestine, illustrating the
severity of his injuries. (Id., at 149.) The record indicates that he was still under the
stress of excitement following the shooting and that only a minimal amount of time had
passed, indicating that the exciting influence had not dissipated.
Regarding the March 2004 shooting, Vaughn’s statements to Freeman were made
within one minute of Vaughn’s being shot. (Id. at 151-52.) In the totality of the
circumstances surrounding the second shooting, it was reasonable for the trial court to
find that Vaughn was still under stress from being shot in the back when he immediately
got out of his car and stated that the petitioner had shot him. (Id.) The Missouri Court of
Appeals agreed. (Id., Ex. E at 9.)
Accordingly, petitioner fails to show that the appellate court’s decision to affirm
the trial court’s admission of Ms. Freeman’s testimony regarding Vaughn’s statements
was an objectively unreasonable application of the Due Process Clause.
Petitioner also alleges that the admission of Freeman’s testimony violated his right
to confrontation.

The Sixth Amendment to the U.S. Constitution states that in all

“criminal prosecutions, the accused shall enjoy the right… to be confronted with the
witnesses against him.” U.S. Const. amend. VI. The Supreme Court has ruled that the
Confrontation Clause applies only to testimonial statements and that states are free to
adopt their own hearsay rules for non-testimonial hearsay. Crawford v. Washington, 541
U.S. 36, 68 (2004).
An accuser who makes a formal statement to government officers bears
testimony in a sense that a person who makes a causal remark to an
acquaintance does not. The constitutional text, like the history underlying
the common-law right of confrontation, thus reflects an especially acute
concern with a specific type of out of court statement.
-12 

Id. “In determining whether a statement implicates the Confrontation Clause, the crucial
inquiry is whether the record was ‘created . . . for the purposes of establishing or proving
some fact at trial.’” United States v. Brooks, 715 F.3d 1069, 1079 (8th Cir. 2013)
(quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009)).
The statements made by Vaughn to Ms. Freeman after being shot on both August
1, 2003 and March 20, 2004 were not testimonial statements. They were not given to a
police officer or another law enforcement official, but rather were spoken to his mother
and they lack the formality associated with testimonial statements. Although the state
appellate court did not address petitioner’s Confrontation Clause argument, it found
reasonable the trial court’s determination that the statements were spontaneous for
hearsay purposes. (Doc. 10, Ex. E at 9.) Anticipating his own death, Vaughn made the
statements to his mother immediately after suffering severe injuries caused by gunshots.
Although the prosecution used Freeman’s testimony regarding her son’s statements to
link petitioner to the assaults, considering his critical state, the record indicates Vaughn
did not utter them to Freeman to establish facts at a later trial but did so in panic or with
hopes of obtaining medical assistance or comfort from his mother. Thus, Ms. Freeman’s
testimony regarding Vaughn’s statements does not violate the Confrontation Clause, and
petitioner’s argument is without merit. Ground 2 is without merit.

C. Grounds 3 and 4
In Ground 3, petitioner argues that the post conviction motion court and the
Missouri appellate court erred in denying his Rule 29.15 motion without an evidentiary
hearing. Habeas relief is available only where errors of a constitutional magnitude have
occurred. Jolly v. Gammon, 28 F.3d 51, 54 (8th Cir. 1994). The Constitution does not
guarantee the right to post-conviction relief. Pennsylvania v. Finley, 481 U.S. 551, 557
(1987). Nor does the Constitution guarantee the right to an evidentiary hearing during
state court post-conviction relief proceedings. Smith v. Lockhart, 882 F.2d 331, 334 (8th

-13 

Cir. 1989). Thus, petitioner’s argument regarding the denial of an evidentiary hearing is
not cognizable.
Petitioner further argues that his trial counsel’s failure to call Damon Scott as an
alibi witness to testify violated his constitutional right to effective assistance of counsel.
Petitioner alleges that Mr. Scott would have testified that Vaughn’s shooter wore a mask,
rendering the shooter impossible to identify.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court determined
that the right to effective assistance of counsel arises from the Sixth and Fourteenth
Amendments. Under Strickland, a petitioner is entitled to federal habeas corpus relief
upon a showing that “counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.” Id.
at 686.
Petitioner must prove two elements to prevail on a claim of ineffective assistance
of counsel. First, petitioner must demonstrate that counsel’s performance fell below an
objective standard of reasonableness. Id. at 687–88. There is a strong presumption that
counsel has rendered constitutionally effective assistance. Id. at 690; Blackmon v. White,
825 F.2d 1263, 1265 (8th Cir. 1987). Counsel’s strategic choices made after thorough
investigation are virtually unchallengeable, and decisions following reasonable, but less
thorough, investigation are to be upheld to the extent that they are supported by
reasonable judgment.

Strickland, 466 U.S. at 690–91.

Second, petitioner must

demonstrate actual prejudice by counsel’s deficient performance. Id. at 687. To show
prejudice, petitioner must establish that “counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” Id.
According to petitioner, Mr. Scott would have testified that the shooter was wore a
mask and because of the mask it would have been impossible to identify the shooter.
Petitioner claims that this testimony would have supported the defense that he was not the
assailant, and therefore, had counsel called Scott to testify at trial petitioner would have
been acquitted.

-14 

The state appellate court found that Scott’s proposed testimony would have
established only that he could not identify the assailant, not that the assailant was not
petitioner. (Doc. 10, Ex. F at 44-54, Ex. I at 4.) The court concluded that Scott’s
testimony would not have provided petitioner with a viable defense, but rather would
have only contradicted the testimony of Ms. Freeman regarding Mr. Vaughn and Mr.
Scott’s statements that petitioner was the shooter in March 2004. Id.
This court agrees that Mr. Scott’s testimony would not have shown that petitioner
was innocent. Even if Scott's expected testimony was true, it would have had little
impeachment value and likely would not have altered the result of the trial. Even
disregarding Ms. Freeman’s testimony that Vaughn and Scott identified the petitioner as
the assailant in the March 2004 incident, the state presented much other evidence of
petitioner’s guilt. Vaughn had identified petitioner as the shooter in the August 2003
assault and the same gun was used in both shootings. (Id., Ex. A at 149, 166-67, 172-73,
239-40.) Moreover, petitioner had previously threatened to kill Vaughn. (Id., at 156.)
Finally, ballistic evidence indicated that three weeks after the March 2004 shooting,
petitioner possessed the gun that was used to shoot Vaughn. (Id., at 166-67, 172-73, 22829, 239-40.) There is no reasonable probability that petitioner would have been acquitted
had counsel called Scott to testify at trial. Therefore, even assuming his trial counsel’s
deficient performance, petitioner fails to show actual prejudice.
In Ground 4, petitioner argues that his trial counsel rendered constitutionally
ineffective assistance by failing to properly challenge the

in-court identification

testimony by John Cancer, because Cancer had been influenced by his conversation with
co-witnesses George Wilson and Ronnell Mays the day before he testified at trial, and by
defense counsel's failing to arguing the error in the motion for a new trial.
According to petitioner, had trial counsel timely objected to Mr. Cancer’s in-court
identification on the ground that the procedure was unduly suggestive, there is a
reasonable probability that the trial court would have sustained the motion to suppress
and excluded the evidence of identification and therefore the jury would have acquitted
him.
-15 

The state appellate court held that petitioner’s claims did not warrant relief. (Doc
10, Ex. I at 6.) This was because trial counsel sought pretrial relief in a motion in limine
and because he objected to Mr. Cancer’s identification testimony.

(Id. at 5.)

Additionally, the court concluded that, although trial counsel did not preserve the error in
his post-trial motion for a new trial, the failure to preserve an error for appellate review
was not a cognizable claim. (Id. at 6.)
Petitioner argues that the in-court identification prejudiced him, because he would
have been acquitted had the identification been suppressed. However, witnesses Mays
and Wilson both made in-court identifications and testified that petitioner was the
assailant in the shootings. (Id., Ex. A at 206, 264.) Petitioner further alleges that witness
Cancer could not identify petitioner following the shooting in 2004 and his identification
testimony was the product of Mr. Cancer’s conversation with Mr. Mays and Mr. Wilson
on the eve of trial in 2008.
These facts afford petitioner no relief, even if true. The asserted conversation
among the witnesses involved private citizens, Mr. Cancer and his friends; none of them
was a state actor. When the suggestive conduct comes from private citizens rather than
state actors, there is no basis to suppress the identification. Perry v. New Hampshire, 132
S.Ct. 716, 720-21 (2012); State v. Body, 366 S.W.3d 625, 630-31 (Mo. Ct. App. 2012).
Rather, the in-court identification must be shown to the factfinder to be unreliable. Id.
The record indicates that defense counsel cross-examined Mr. Cancer and argued to the
jury that his testimony came after his conversation with Mays and Wilson. (Doc. 10, Ex.
A at 254-57, 259, 327-29.)
Accordingly, Ground 3 and Ground 4 are without merit.

D. Ground 5
In Ground 5, petitioner argues that his appellate counsel was constitutionally
ineffective by failing to appeal the trial court’s evidentiary ruling allowing George
Wilson to testify about an uncharged crime implicating petitioner. More specifically,
petitioner alleges that this testimony was improper propensity evidence and, therefore,
-16 

had counsel asserted trial court error in this regard on direct appeal, the Missouri Court of
Appeals would have granted him relief.
In Smith v. Robbins, 528 U.S. 259, 285 (2000), the Supreme Court determined
that in order to prove ineffective assistance of appellate counsel a petitioner must fulfill
the Strickland requirements by showing that his counsel was unreasonably deficient and
that his defense was prejudiced by his deficiency. “When appellate counsel competently
asserts some claims on a defendant’s behalf, it is difficult to sustain an ineffective
assistance claim based on allegations that counsel was deficient for failing to assert some
other claims.” Link v. Luebbers, 469 F.3d 1197, 1205 (8th Cir. 2006) (citing Smith, 528
U.S. at 288). “Because one of appellate counsel’s important duties is to focus on those
arguments that are most likely to succeed, counsel will not be held ineffective for failing
to raise every conceivable issue.” Id. at 1205. “Generally, only when ignored issues are
clearly stronger than those presented, will the presumption of effective counsel be
overcome.” Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986), cited with approval in
Smith, 528 U.S. at 288.
Petitioner’s underlying claim regarding the admissibility of evidence is one of
state of law. A federal habeas court must accept the rulings of a state court on matters of
state law. Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir. 1994). Under Missouri Law,
evidence of uncharged crimes and prior misconduct of a defendant is admissible in court
“if the evidence is logically relevant, in that it has some legitimate tendency to establish
directly the accused’s guilt of the charges for which he is on trial . . . and if the evidence
is legally relevant, in that its probative value outweighs its prejudicial effect.” State v.
Clover, 924 S.W.2d 853, 855 (Mo. banc 1996). Evidence of other crimes is “generally
deemed admissible when it has the tendency to establish motive, intent, absence of
mistake or accident, common scheme or plan, or identity of the accused.” State v.
Stanley, 952 S.W.2d 327, 330 (Mo. Ct. App. 1997).
The state court found that petitioner’s claim lacked merit because Mr. Wilson’s
testimony was relevant to the issue of identity by demonstrating a common scheme or
plan and a sequence of events prior to the charged crime. (Doc. 10, Ex. I at 7.) The state
-17 

court also discussed that the charged crime in question was a murder charge for which
petitioner was not convicted, providing evidence that petitioner suffered no prejudice
from the testimony. (Id.) The Missouri Court of Appeals stated “any error in admission
of this evidence would have been harmless error, thereby further precluding any finding
of prejudice from the failure to brief this claim.” (Id.)
Because this issue was held to be meritless under state law, appellate counsel did
not act unreasonably when opting to omit this issue from the appeal and instead focusing
on stronger arguments. Additionally, as noted by the Missouri Court of Appeals, there
was no reasonable probability that the result on appeal would have been different had this
issue been raised on appeal.
Accordingly, Ground 5 is without merit.

VI. CONCLUSION
For the reasons stated above, the petition of Derrick Smith for a writ of habeas
corpus is denied. Because petitioner has made no substantial showing of the denial of a
constitutional right, the court does not issue a certificate of appealability. 28 U.S.C. §
2253(c)(2).
An appropriate Judgment Order is issued herewith.
/S/ David D. Noce
k
UNITED STATES MAGISTRATE JUDGE

Signed on April 8, 2014.

-18