Taylor v. Steele
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the petition of Leonard S. Taylor for a writ of habeas corpus is DENIED. IT IS FURTHER ORDERED that the Court will issue a certificate of appealability in a separate document. Signed by District Judge Rodney W. Sippel on 3/31/19. (ARL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
LEONARD S. TAYLOR,
No. 4:12 CV 2278 RWS
MEMORANDUM AND ORDER
This matter is before me upon the petition of Missouri state prisoner
Leonard Taylor for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc.
19). After carefully considering Taylor’s petition, Respondent’s brief (Doc. 29),
the underlying record (Doc. 29, Ex. A-JJ), and Taylor’s reply (Doc. 46), I will
deny the petition for the reasons set forth below.
1. Investigation & Arrest
On the evening of December 3, 2004, police investigated the St. Louis
County home of Angela Rowe and her three children at the request of family
members and school officials. (Doc. 29, Ex. P at 23) The investigating officers
observed that the front yard “was covered with the daily paper[,]” “[the] [mailbox]
was full of mail[,]” and that all the windows and doors were locked. (Id.) With
the assistance of the fire department, the investigating officers forced entry into the
house through a window. (Id.)
Inside, they discovered the bodies of Rowe and her children: Alexus Conley,
age ten; Acqreya Conley, age six; and Tyrese Conley, age five. (Id., Ex. P at 24)
Each had sustained gunshot wounds to the head. (Id.) Rowe had sustained
additional gunshot wounds to the torso and left arm. (Id., Ex. Q at 28) The
officers observed that the temperature inside the house was “very cold,” that the
television was on, and that there were no indications of burglary or previous forced
entry. (Id., Ex. P at 25) Based on information from Rowe’s family that a fifth
person, Taylor, lived at the house, the officers searched the residence and found no
one else present. (Id.) Taylor then became a person of interest within the
investigation. (Id., Ex. Q at 12)
The investigation quickly established a) that Taylor had an outstanding
arrest warrant for a parole violation; b) that he had a wife, Debrene Williams, in
California; c) that he had been driven to Lambert International Airport by his
sister-in-law, Elizabeth Williams, on November 26; and d) that he had departed St.
Louis that day on a flight to California under the alias “Louis Bradley.” (Doc. 29,
Ex. P at 21) Using cell phone records, the investigating officers determined that
Taylor subsequently traveled from California to Kentucky. (Id.)
In conjunction with United States Marshals, the investigating officers set up
surveillance of several residences in Madisonville, Kentucky that Taylor had been
known to frequent in the past. (Doc. 29, Ex. R at 11) On the morning of
December 9, 2004, members of the surveillance team observed Taylor attempting
to leave one of the residences by hiding on the floorboard of a car’s passenger
compartment. (Id. at 12) The car was stopped and Taylor was subsequently
arrested. (Id. at 15) At the time of his arrest, Taylor was traveling under the alias
“Jason Lovely” and possessed pamphlets, documents, and other materials laying
out procedures for creating additional aliases and fraudulent vital documents. (Id.,
Ex. at 15-17)
Taylor was charged with four counts of first-degree murder and four counts
of armed criminal action for the killings of Angela Rowe and her children. (Doc.
29, Ex. A at 55-58) While awaiting trial for their murders, Taylor was tried and
convicted on an unrelated charge of forcible rape and sentenced as a persistent sex
offender to a prison term of one hundred years without parole. See State v. Taylor,
238 S.W.3d 145 (Mo. 2007) (summarizing underlying facts and affirming
conviction on direct review); see also Taylor v. State, 344 S.W.3d 217 (Mo. App.
2011) (noting length of sentence and affirming denial of post-conviction relief).
After multiple continuances were granted to Taylor’s defense team to ensure
adequate representation, his murder trial began on February 25, 2008. (Doc. 29,
Ex. P at 11)
The guilt phase of Taylor’s trial for first-degree murder and armed criminal
action concluded on February 28, 2008. The jury deliberated for four and half
hours before finding Taylor guilty on all counts. (Doc. 29, Ex. S at 59-60) The
jury reconvened the next day, February 29, 2008, for the penalty phase of the trial.
(Doc. 29, Ex. T) The jury heard evidence of Taylor’s prior convictions, testimony
from the victim in the aforementioned forcible rape case, and testimony from
family members of Angela Rowe and her children. (Id. at 7-12) On Taylor’s
orders, his trial team did not present any argument in mitigation and entered as
their sole evidence a written stipulation of Taylor’s good conduct while
incarcerated. (Id. at 5-6, 12, 19) The jury deliberated for three hours before
recommending the death penalty on each of the four counts of first-degree murder.
(Id. at 20) On April 17, 2008, the trial court sentenced Taylor to death on each of
the four murder charges and imposed consecutive sentences of life imprisonment
on the armed criminal action charges. (Id. at 21-22)
3. Direct Appeal
Taylor raised eleven grounds in his direct appeal. (Doc. 29, Ex. U at 2) I
briefly outline Taylor’s arguments on direct appeal as follows:
In his first, second, third, and fourth grounds, Taylor argued that the trial
court abused its discretion in excluding certain witness statements and other
evidence as hearsay. (Doc. 29, Ex. U at 36, 62, 77, and 84)
In his fifth ground, Taylor argued that the trial court erroneously admitted
forensic test results “that lacked probative value and [were] unreliable, speculative,
and misleading.” (Id. at 89)
In his sixth ground, Taylor argued that the trial court erroneously denied his
motions to exclude those forensic test results based on the timing of their
disclosure to the defense. (Id. at 99)
Seventh, Taylor argued that his speedy trial rights under Missouri state law
and under the Missouri and United States Constitutions were violated by the
multiple continuances granted to his defense counsel. (Id. at 107)
Eighth, Taylor argued that the trial court erroneously admitted a
conversation between his brother Perry and the police, during which Perry stated
that Taylor had confessed to the murders of Angela Rowe and her children,
because the interrogating detective allegedly expressed an opinion as to Perry’s
credibility as a witness. (Id. at 118)
Ninth, Taylor argued that the trial court erroneously allowed a cause strike
of a potential juror who had expressed reservations about her ability to consider
capital punishment during voir dire. (Id. at 124)
Tenth, Taylor argued that the State made improper arguments during closing
and that the trial court plainly erred by not intervening sua sponte. (Doc. 29, Ex. U
Finally, Taylor argued that the trial court abused its discretion by denying
his request for a mistrial when, upon being found guilty by the jury, he was
handcuffed in view of the jury while being removed from the courtroom. (Id. at
The Missouri Supreme Court1 addressed each of Taylor’s claims on the
merits and affirmed the trial court’s judgment on October 27, 2009. State v.
Taylor, 298 S.W.3d 482 (Mo. 2009).
4. Post-Conviction Review
Taylor raised eighteen grounds in his amended motion for post-conviction
relief, which incorporates his prior pro se motion for post-conviction relief. (Doc.
29, Ex. Z at 42-114, Ex. AA, Ex. BB at 5-27) Two of these grounds are related to
claims Taylor raises in his habeas petition. The first is that he received ineffective
assistance of trial counsel when his defense team failed to adequately examine
phone records used at trial and adduce allegedly favorable evidence from crossexamination of the phone records’ custodians. (Doc. 29, Ex. AA at 5) The second
ground that Taylor’s waiver of evidence / counsel at the penalty phase of the trial
Because Taylor was sentenced to death, the Missouri Supreme Court held
exclusive appellate jurisdiction. See Mo. Const. art. V, sec. 3.
was not knowing, voluntary, and unequivocal is related to an ineffective assistance
of counsel claim Taylor raises for the first time in his habeas petition.
The post-conviction court conducted an evidentiary hearing on May 20,
2011, on three of Taylor’s claims: two ineffective assistance of trial counsel claims
and a claim that the death penalty as administered in Missouri is unconstitutional.
(Doc. 29, Ex. DD, Ex. EE) The post-conviction court denied Taylor’s motion for
relief on September 19, 2011. (Doc. 29, Ex. CC at 38-69)
5. Appeal of Post-Conviction Review
Taylor appealed the denial of post-conviction relief to the Missouri Supreme
Court. (Doc. 29, Ex. FF) He raised four grounds in his appeal. His first and
second grounds disputed the post-conviction court’s findings on claims raised at
the evidentiary hearing. (Id. at 37-40, 43-82, 83-116) His third and fourth grounds
alleged that the post-conviction court erred in refusing to grant an evidentiary
hearing on additional claims. (Id. at 41-42, 117-129, 130-138) The Missouri
Supreme Court affirmed the post-conviction court’s decision on October 30, 2012.
(Doc. 29, Ex. II)
6. Petition for Writ of Habeas Corpus
Taylor raises eight claims in his petition for habeas relief.
First, that his speedy trial rights under Missouri state law and under the Sixth
Amendment of the United States Constitution were violated by the delay of
approximately thirty-one months between his invocation of his speedy trial right in
July of 2005 and his trial in February 2008. (Doc. 19 at 5-13)
Second, that his constitutional right to present a complete defense under the
Sixth and Fourteenth amendments was violated by the exclusion of allegedly
favorable evidence as hearsay. (Id. at 13-21)
Third, that his trial counsel was constitutionally ineffective for failing to
object to the admission of phone records and for failing to adequately investigate
those records to identify their utility for cross-examination, and that his rights to
due process of law and to be free of cruel and unusual punishment under the
Fourteenth and Eighth Amendments were violated by allegedly false testimony
given by a phone records custodian. (Id. at 21-42)
Fourth, that his constitutional rights to due process of law and a
fundamentally fair trial under the Fifth, Sixth, and Fourteenth Amendments were
violated when the trial court denied his motion to exclude forensic test results on
the basis of their late disclosure and allegedly misleading nature. (Id. at 42-50)
Fifth, that his constitutional rights to due process of law and to be free of
cruel and unusual punishment under the Sixth, Eighth, and Fourteenth
Amendments were violated by the exclusion of a prospective juror on the basis of
her views on capital punishment, because those views allegedly did not impair her
ability to abide by her duties as a juror. (Doc. 19 at 50-54)
Sixth, that his constitutional rights to due process of law and to be free of
cruel and unusual punishment were violated by the State’s allegedly improper
arguments during voir dire and at closing, and that his trial counsel was
constitutionally ineffective for failing to object to those arguments. (Id. at 54-58)
Seventh, that his constitutional rights to due process of law and to be free of
cruel and unusual punishment were violated when he was handcuffed in front of
the jury at the conclusion of the guilt phase of his trial. (Id. at 58-59)
Eighth, that his trial counsel was constitutionally ineffective for failing to
disregard Taylor’s directive to not make a closing argument at the penalty phase of
the trial. (Id. at 59-62)
A federal district court’s power to review state court criminal decisions in a
federal habeas corpus proceeding is limited. Harrington v. Richter, 562 U.S. 86,
92 (2011) (“Under 28 U.S.C. § 2254(d), the availability of federal habeas relief is
limited with respect to claims previously ‘adjudicated on the merits’ in state-court
proceedings”). “As a condition for obtaining habeas corpus from a federal court, a
state prisoner must show that the state court's ruling on the claim being presented
in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S. at 102.
A federal court=s power to grant a writ of habeas corpus is governed by 28
U.S.C. ' 2254(d), which provides:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim – (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).
The Supreme Court construed ' 2254(d) in Williams v. Taylor, 529 U.S. 362
(2000). With respect to the “contrary to” language, a majority of the Court held
that a state court decision is contrary to clearly established Federal law “if the state
court arrives at a conclusion opposite to that reached by [the Supreme Court] on a
question of law” or if “the state court decides a case differently than [the] Court
has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413.
Under the “unreasonable application” prong of ' 2254(d)(1), a writ may issue if
“the state court identifies the correct governing legal rule from [the Supreme
Court=s] cases but unreasonably applies [the principle] to the facts of the particular
state prisoner=s case.” Id. Thus, “a federal habeas court making the >unreasonable
application= inquiry should ask whether the state court=s application of clearly
established federal law was objectively unreasonable.” Id. at 409. Although the
Court failed to specifically define “objectively unreasonable,” it observed that “an
unreasonable application of federal law is different from an incorrect application of
federal law.” Id. at 410.
Moreover, “a determination of a factual issue 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.” 28 U.S.C. '
2254(e)(1). In addition, claims in a habeas petition “that have not been presented
to the state courts, and for which there are no remaining state remedies, are
procedurally defaulted.” Skillicorn v. Luebbers, 475 F.3d 965, 976 (8th Cir. 2007).
“Unless a habeas petitioner shows cause and prejudice or that he is actually
innocent of the charges, a court may not reach the merits of procedurally defaulted
claims in which the petitioner failed to follow applicable state procedural rules in
raising the claims.” Id.
Finally, several of Taylor’s claims assert that he received constitutionally
ineffective assistance of counsel. To prevail on a claim alleging ineffective
assistance of counsel, a defendant must satisfy the two-part test of Strickland v.
Washington, 466 U.S. 668 (1984). For a convicted defendant to prove that his
counsel was ineffective, the defendant must first show that the counsel’s
performance was deficient. Strickland, 466 U.S. at 687. This requires the
defendant to show “that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. A defendant can demonstrate that counsel’s performance was deficient where
counsel’s performance “[…] ‘fell below an objective standard of reasonableness.’”
Wiggins v. Smith, 539 U.S. 510, 522 (2003) (quoting Strickland, 466 U.S. at 688).
But “[…] ‘[strategic] choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.’” United States v. Rice,
449 F.3d 887, 897 (8th Cir. 2006) (quoting Strickland, 466 U.S. at 690). And
“[…] [there] is a ‘strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.’” Id. (quoting Strickland, 466 U.S. at
689). If the defendant fails to show that his counsel was deficient, the court need
not address the second prong of the Strickland test. Brown v. United States, 311
F.3d 875, 878 (8th Cir. 2002).
In that second prong, a defendant must demonstrate that the deficient
performance was “so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Strickland, 466 U.S. at 687. “The defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Id. at 694.
The Eighth Circuit has described the Strickland test as follows: the questions
a court must ask are “[whether] counsel’s performance was in fact deficient and, if
so, whether the defendant was prejudiced by the inadequate representation. If we
can answer ‘no’ to either question, then we need not address the other part of the
test.” Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000). When
evaluating counsel’s performance, the court “must indulge in a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689. Considered objectively, counsel’s
performance is gauged by “whether it was reasonable ‘under prevailing
professional norms’ and ‘considering all the circumstances.’” Fields, 201 F.3d at
1027 (quoting Strickland, 466 U.S. at 688). “[We] avoid making judgments based
on hindsight.” Id. A reviewing court’s “scrutiny of counsel’s performance must
be highly deferential.” Strickland, 466 U.S. at 689.
1. An alleged violation of Taylor’s state statutory rights is not cognizable in
a federal habeas petition, and his federal constitutional right to a speedy trial was
not violated by the grant of multiple continuances where those continuances
protected his constitutional right to effective assistance of counsel and where he
failed to identify prejudice resulting from the delay.
Taylor was arrested in December of 2004. He asserted his right to a speedy
trial in July of 2005. He was not tried until February of 2008. He argues that this
delay violated his statutory rights under the Uniform Mandatory Disposition of
Detainers Law (UMDDL), which provides that a prisoner may request the
disposition of pending charges within one hundred and eighty days. “If the
[charge] is not brought to trial within the [one hundred and eighty day] period and
if the court finds that the offender’s constitutional right to a speedy trial has been
denied, no court of this state shall have jurisdiction of such [charge]… and the
court shall issue an order dismissing the same with prejudice.” Mo. Rev. Stat. §
217.460 (2009); see also Doc. 19 at 6. Taylor also argues that this delay violated
his federal constitutional right to a speedy trial under the Sixth and Fourteenth
Amendments. (Doc. 19 at 5-6)
The Missouri Supreme Court summarized the facts relevant to this claim in
its denial of Taylor’s direct appeal.
In December 2004, a complaint was filed charging
Taylor with four counts of first-degree murder and four
counts of armed criminal action. In February 2005,
private counsel entered his appearance on Taylor’s
behalf. The complaint was superseded by an indictment
filed on March 30, 2005. In April 2005, Taylor began
serving a 100-year sentence on an unrelated conviction
and in July 2005, filed a request for disposition of the
In August 2005, private counsel filed a motion to
withdraw on the basis that inadequate financial resources
prevented him from providing adequate representation
for Taylor. The court granted the motion and continued
the case until September 16, 2005, for entry of new
counsel. The court ordered that the period from August
11th to September 16th be tolled for purposes of the
Uniform Mandatory Disposition of Detainers Law
A public defender entered an appearance on August 26,
2005. On September 15, 2005, the State filed notice of
intent to seek the death penalty, and three public
defenders from the capital trial division entered an
A hearing was held on September 16, 2005, at which
Taylor’s counsel requested a continuance based on the
complexity of the capital murder case, the need for
extensive discovery for both the guilt and penalty phases,
and the additional trial obligations of the next year.
Taylor objected to this request. The court granted the
request, and trial was set for October 11, 2006.
In November 2005, the State filed a motion to reconsider
the order extending the trial date, arguing that Taylor
properly filed his speedy trial request and that as a result,
the case should be tried before January 21, 2006. The
State was also concerned with whether Taylor’s
counsel’s caseload was sufficient good cause to continue
the case. After a hearing was held, the trial court denied
the State’s request.
In July 2006, Taylor’s trial counsel filed a motion to
continue, requesting additional time for investigation and
preparation for trial. After a hearing, the trial court
overruled the motion. A motion to reconsider this denial
was filed and included “Defendant’s Consent to
Continuance” signed by Taylor, requesting that the case
be continued, “as additional time is needed for defense
counsel to prepare for trial.” Judicial notice was taken of
the arguments raised at the previous hearing, and the case
was continued to May 2007.
In September 2006, the case was transferred to a different
judge. In October 2006 and April 2007, Taylor filed pro
se motions to dismiss for violating the UMDDL; the trial
court overruled both.
Taylor’s counsel’s final request for a continuance
occurred in April 2007 in connection with the State’s
disclosure of [blood & DNA] test results. Taylor
objected to this continuance. The trial court, after
overruling Taylor’s motions to exclude the evidence,
granted the continuance, and trial was held on February
State v. Taylor, 298 S.W.3d 482, 502-503 (Mo. banc 2009).
In his habeas petition, Taylor argues that the one hundred and eighty day
clock imposed by the UMDDL was not properly tolled between August 11, 2005,
and October 11, 2006, because:
[Taylor] did not consent to any of the continuances and
consistently refused to waive his right to a speedy trial.
See State ex rel. Clark v. Long, 870 S.W.2d 932, 941
(Mo. App. S.D. 1994). Only after the 180 day period
expired and the court had, in [Taylor’s] view, already lost
jurisdiction did petitioner reluctantly agree to one
(Doc. 19 at 11) In the alternative, Taylor argues that the UMDDL time limit was
not properly tolled between May 30, 2007, and February 20, 2008, because:
[This] delay was caused solely by the state’s late
disclosure of DNA evidence. [Taylor’s] sunglasses were
seized from his luggage on the date he was arrested on
December 9, 2004. [Doc. 29, Ex. D at 57]. There is no
excuse for the state waiting nearly two years, until
November 8, 2006, to test the glasses. [Id., Ex. D at 58].
This two hundred sixty-six (266) day delay alone violates
the UMDDL and demonstrates that petitioner was denied
a speedy trial. Courts from several jurisdictions have
held that a defense continuance does not waive a
defendant’s right to a speedy trial where there has been
an inexcusable delay in providing discovery or there was
some other violation of discovery rules by the prosecutor.
See, e.g., State v. T.G., 990 So.2d 1183, 1184 (Fla. App.
2008); Commonwealth v. Edwards, 595 A.2d 52, 54-55
(Pa. 1991); State v. Price, 620 P.2d 994, 996 (Wash.
(Id. at 11) Taylor cites Simmons v. United States, 390 U.S. 377 (1968), for the
proposition that “it is unconstitutional to place a defendant in a situation where he
must waive one constitutional right in order to assert another.” See Doc. 19 at 12;
see also Simmons, 390 U.S. at 394 (holding that defendant’s self-incriminating
testimony offered in support of his motion to suppress evidence on Fourth
Amendment grounds could not later be admitted against him at trial). Taylor also
cites Marshall v. State, 759 N.E.2d 665 (In. App. 2001), State v. Allen, 134 P.3d
976 (Or. App. 2006), and State v. Wamsley, 594 N.E.2d 1123 (Ohio App. 1991), as
support for his argument that “it is fundamentally unfair to place [sic] a
defendant… to either go to trial unprepared or waive his right to a speedy trial….
[A] continuance that is compelled by a state’s lack of diligence in providing
discovery must be charged against the state.” (Id. at 12)
Taylor also argues that the UMDDL:
[Created] a liberty interest entitling [Taylor] to
procedural due process protection under the Fourteenth
Amendment. Vitek v. Jones, 445 U.S. 480 (1980).
Because of this clear UMDDL violation, St. Louis
County, Missouri lacked the legal authority and power to
bring petitioner to trial in February of 2008, which
denied petitioner due process of law. Blackledge v.
Perry, 417 U.S. 21, 30-31 (1974).
Finally, Taylor argues that he has a freestanding constitutional claim under
the Sixth Amendment as determined by Barker v. Wingo, 407 U.S. 514 (1972):
Under the Barker test, reviewing courts must assess the
length of delay, the reasons for the delay, the defendant’s
assertion of the right, and prejudice. Id. at 530. Each of
these four factors weigh heavily in favor of [Taylor] on
this Sixth Amendment claim.
First, since the length of the delay was over three years,
this lapse of time is presumptively prejudicial.2 See State
ex rel. Garcia v. Goldman, 316 S.W.3d 907, 911 (Mo.
banc 2010). The reasons for the delay are not attributable
for petitioner, and petitioner asserted his right to a speedy
trial more than two and a half years before trial
(Id. at 13) (footnote in original).
Respondent argues that the decision of the Missouri Supreme Court denying
this claim on the merits is reasonable and entitled to deference. The Missouri
Supreme Court stated:
Taylor invoked his right to a speedy trial pursuant to the
UMDDL, section 217.450-485. The UMDDL, including
[Taylor] was also prejudiced, as he alleged in one of his pro se motions to
dismiss, because the videotaped statements of defense witnesses Gerjuan Rowe
and Beverly and Sherry Conley taken by police either mysteriously disappeared or
were accidentally erased. [Doc. 29, Ex. C at 74-75; Ex. Q at 15-16].
the right to be tried within 180 days, is reviewed de novo.
State v. Nichols, 207 S.W.3d 215, 219 (Mo. App. 2006).
The UMDDL provides that a defendant who currently is
confined in a department correctional facility may
request a final disposition of an untried indictment.
Section 217.460 provides that:
Within one hundred eighty days after the
receipt of the request and certificate,
pursuant to sections 217.450 and 217.455,
by the court and the prosecuting attorney or
within such additional necessary or
reasonable time as the court may grant, for
good cause shown in open court, the
offender or his counsel being present, the
indictment, information or complaint shall
be brought to trial… (emphasis added).
The trial court has discretion to allow a continuance for
good cause. State ex rel. Wolfrum v. Wiesman, 225
S.W.3d 409, 412 (Mo. banc 2007). Defense counsel may
show good cause for a continuance under the statute even
if defendant objects so long as the request is based on
reasonable grounds showing the delay is for good cause.
Id. Once a defendant invokes the right to counsel,
counsel has the authority “to seek reasonable
continuances for the purpose of assuring effective
assistance of counsel.” Id.
The court had good cause to grant the continuances.
Although the continuances were requested over Taylor’s
objection, the requests were sought to prepare for trial
after appointment as well as to respond to newly
discovered evidence before trial. Given the complexity
of the trial and the amount of preparation and
investigation required, counsel established sufficient
grounds for good cause for the delay, and the additional
time ensured that Taylor received effective assistance of
counsel. Further, the requests were granted in open court
with Taylor and counsel present. Taylor fails to show a
violation of the UMDDL.
The defendant’s right to a speedy trial is founded upon
the Sixth Amendment of the United States Constitution
and Mo. Const. art. I, § 18(a). The United States and
Missouri constitutions provide equivalent protection for a
defendant’s right to a speedy trial. State ex rel. McKee v.
Riley, 240 S.W.3d 720, 729 (Mo. banc 2007). To assess
whether a right has been respected or denied involves a
balance of four factors: (1) the length of delay; (2) the
reason for the delay; (3) the defendant’s assertion of his
right; and (4) prejudice to the defendant. Id.
It is undisputed that the delay here was lengthy and that
Taylor effectively asserted his right to speedy trial. As
discussed above, the reason for a substantial portion of
the delay was to provide counsel with more time to
prepare for trial, which effectively protected Taylor’s
right to effective assistance of counsel. Moreover,
Taylor was not prejudiced by this delay because he was
concurrently incarcerated on unrelated charges and
serving a sentence of 100 years.
Taylor fails to show a violation of his constitutional or
statutory right to speedy trial. Point seven is denied.
Taylor, 298 S.W. 3d at 503-504 (footnotes omitted); (see also Doc. 29 at 11-14)
Respondent also argues that the portion of Taylor’s claim pertaining to the
UMDDL is not cognizable in a federal habeas petition:
The Eighth Circuit has held that “violation by state
officials of a state speedy trial law, taken alone, does not
present a federal claim reviewable on habeas petition.”
Poe v. Caspari, 39 F.3d 204, 207 (8th Cir. 2004 [sic]3);
Respondent cites Poe v. Caspari as a 2004 case. It was decided in 1994. See
Poe, 39 F.3d 204. I therefore infer that this is typographical error.
see also Shigemura v. Moore, No 4:07-CV-459 (CEJ),
2007 WL 2736306, at *4 (E.D.Mo. September 17, 2007)
(“Issues concerning the interpretation and application of
a state law are not cognizable in federal habeas review.”)
(Id. at 14-15)
Finally, Respondent argues that the portion of Taylor’s claim pertaining to
his constitutional right to a speedy trial should be denied on the merits:
Taylor fails to explain how the Missouri Supreme Court
unreasonably applied the standard set forth in Barker v.
Wingo, 407 U.S. 514 (1971)…. While it is clear that
Taylor asserted his speedy trial right and that the state
tried him two years and ten months after formal charging,
the delays were at the request of the defense, not the State
or the court.
“Delay caused by the defense weighs against the
defendant… because the attorney is the defendant’s agent
when acting, or failing to act, in furtherance of the
litigation, delay caused by the defendant’s counsel is also
charged against the defendant.” Vermont v. Brillon, 556
U.S. 81, 90 (2009) (internal quotations omitted). Further,
Taylor’s only claim of prejudice, keeping in mind that
that [sic] he was incarcerated before his trial serving a
100 year sentence, is that “videotaped statements of the
defense witnesses Gerjuan Rowe and Beverly and Sherry
Conley taken by police either mysteriously disappeared
or were accidentally erased” [Doc. 19 at 13]. Taylor
does not provide any more information about the tapes or
their contents, including whether a transcript of the
statements exists, if and where police made reference to
the tapes in their reports, or if and where the tapes are
referenced in the legal file. Further, Taylor does not
explain why the delay was the reason such statements
were lost, what favorable evidentiary value the
statements would have had, or how the presence of the
statements would have altered the result of his trial.
(Id. at 15-16)
In reply, Taylor argues that Poe v. Caspari does not control in this case and
that I may consider his UMDDL claim on the merits. (Doc. 46 at 25) Taylor
makes three separate claims in support of this point:
First, the decision in Poe rests upon a long line of older
cases that… was implicitly overruled by the United
States Supreme Court in Alabama v. Bozeman, 533 U.S.
146 (2001). In Bozeman, the Supreme Court granted
discretionary review to address an [Interstate Agreement
on Detainers] claim that had been litigated before
Alabama’s state courts. If detainer violations such as the
one presented here did not present a federal question, it is
obvious that the United States Supreme Court would not
and could not have intervened and addressed the question
before it in Bozeman.
(Id. at 25)
Second, a violation of the UMDDL, because it is an
interstate compact, falls within a federal court’s
jurisdiction under the Compact Clause embodied in Art.
I, § 10, cl. 3 of the United States Constitution…. The fact
that Missouri is a signatory to the UMDDL with seven
other states makes the UMDDL a compact.
The UMDDL is intended to be construed in harmony
with the Interstate Agreement on Detainers (IAD). State
ex rel. Kemp v. Hodge, 629 S.W.2d 353, 359 (Mo. banc
1982). As an interstate compact approved by Congress,
the Interstate Agreement on Detainers is a federal law
and its violation presents a federal question cognizable in
a 2254 action. Brown v. Wolff, 706 F.2d 902, 905
(1983); see also Cuyler v. Adams, 449 U.S. 433, 438
The UMDDL too should be considered an interstate
compact within the Compact Clause of the United States
Constitution…. It is ultimately the federal court’s duty to
interpret and apply congressionally approved compacts
given their federalized nature. Delaware River Joint Toll
Bridge Commission v. Colburn, 310 U.S. 419, 427
(Id. at 25-28)
Third… the [state court decisions regarding] the
UMDDL arbitrarily deprived petitioner of a liberty
interest guaranteed by the due process clause of the
Fourteenth Amendment. See Hicks v. Oklahoma, 443
[sic]4 U.S. 343, 346 (1980). In such situations, where a
constitutional violation removes the authority of a state
or federal entity to bring a petitioner to trial, a due
process violation occurs. See Blackledge v. Perry, 417
U.S. 21, 30-31 (1974).
… there is no relitigation bar under 2254(d)(1) or (d)(2)
because the Missouri Supreme Court, in addressing the
claim, overlooked a critical factual issue that is central to
this claim for relief. The state court failed to take into
account the delay occasioned by the state’s dilatory
behavior in in [sic] failing to seek DNA testing of
petitioner’s eyeglasses. This delay, by itself, necessitated
a continuance delaying the trial beyond the one hundred
eight (180) day window, in clear violation of the
UMDDL…. the Missouri Supreme Court, in addressing a
separate claim that this DNA evidence should have been
excluded because of the state’s misconduct, did not find
any excuse for the dilatory behavior of the prosecution,
despite refusing to reverse the trial court’s ruling not to
exclude this evidence as an abuse of discretion. State v.
Taylor, 298 S.W.3d at 501-502.
Taylor cites Hicks in his reply as 443 U.S. 343. That citation leads to Federal
Open Market Committee of Federal Reserve System v. Merrill, 443 U.S. 340
(1979), a case governing the Freedom of Information Act’s interaction with trade
secrets and having no applicability to the case at bar. The correct citation for Hicks
is 447 U.S. 343. I therefore infer that this is typographical error and that Taylor
does not attempt to rely on Merrill.
(Id. at 28-29)
Finally, Taylor argues that the Missouri Supreme Court’s decision
incorrectly adjudicated his speedy-trial constitutional claim because:
[It] overlooked the obvious fact that a great portion of the
delay was the fault of the prosecutor who “dragged his
feet” by over two years before finally subjecting
petitioner’s sunglasses to forensic testing.
overlooking this critical fact that is central to [Taylor’s]
claim for relief, the Missouri Supreme Court’s decision is
both factually and legally unreasonable under 2254(d)(1)
and (d)(2). See Wiggins, 539 U.S. at 528.
In assessing prejudice, the Missouri Supreme Court
merely notes that no prejudice could be established
because [Taylor] was imprisoned on other charges.
There is no 2254(d) relitigation bar to this Court’s de
novo review of the issue of prejudice for several reasons.
First, the court failed to consider… that this delay
deprived [Taylor] of the exculpatory evidence contained
in the videotaped statements of Gerjuan Rowe, Beverly
Conley, and Sherry Conley…. In addition, the
appropriate speedy trial analysis should not consider the
fact that [Taylor] would otherwise be incarcerated on
other unrelated convictions as conclusive evidence of a
lack of prejudice. See Smith v. Hooey, 393 U.S. 374, 379
(1969). One of the policy considerations at the core of
the Sixth Amendment requirement of a speedy trial is to
minimize the anxiety, concern and other hardships
associated with pending charges hanging over a
defendant’s head for a prolonged period of time. Id.
(Id. at 29-31).
Having carefully reviewed the parties’ briefs, the Missouri Supreme Court’s
decision, and the underlying legal file, I find this ground for relief to be without
First, Taylor’s claim pursuant to the UMDDL is not cognizable in a federal
habeas petition. “Violation by state officials of a state speedy trial law, taken
alone, does not present a federal claim reviewable on habeas petition.” Poe v.
Caspari, 39 F.3d 204, 207 (1994) (internal citations omitted).
Second, Taylor’s argument that Poe does not control is without merit. The
United States Supreme Court’s decision in Alabama v. Bozeman did not implicitly
overrule Poe or the prior cases upon which Poe rests. Instead, Bozeman addressed
a claim pertaining to the Interstate Agreement on Detainers (IAD), not the
UMDDL. The IAD is a federal law enacted and approved by Congress; see 18
U.S.C. App. 2 § 2. The UMDDL is a state statute; see Mo. Rev. Stat. § 217.450
(2009). The fact that the UMDDL is “intended to be construed in harmony with
the [IAD]” does not transform state law into federal law for purposes of a habeas
petition. (Doc. 46 at 26) (citing State ex rel. Kemp v. Hodge, 629 S.W.2d 353, 359
(Mo. banc 1982)). The UMDDL was never considered and approved by Congress;
therefore, it is not a “compact” within the meaning of the Compact Clause of the
United States Constitution. See Cuyler v. Adams, 449 U.S. 433, 439 (1981) (“The
requirement of congressional consent is at the heart of the Compact Clause”).
Taylor’s citations to Cuyler, to Brown v. Wolff, 706 F.2d 902 (9th Cir.
1983), and to Carchman v. Nash, 473 U.S. 716 (1985), are unavailing because they
each deal with applications of the IAD, not the UMDDL. Hicks v. Oklahoma, 447
U.S. 343 (1980), in which the Supreme Court reversed a state sentence imposed
under an unconstitutional sentencing scheme, and Blackledge v. Perry, 417 U.S. 21
(1974), which considered a due process claim raised by a state’s retaliatory
prosecution after a prisoner asserted his right under a state statute to a de novo trial,
are even farther removed from the claim at bar and have no applicability.
Delaware River cuts against Taylor, not in his favor: “[The] construction of
such a compact sanctioned by Congress by virtue of Article I, § 10, clause 3 of the
Constitution, involves a federal ‘title, right, privilege, or immunity’ which when
‘specially set up or claimed’ in a state court may be reviewed [in federal court.]”
Delaware River Joint Toll Bridge Commission v. Colburn, 310 U.S. at 427
(emphasis added). A Congressional sanction, or the lack thereof, is the dispositive
factor. Taylor implicitly recognizes this elsewhere in his reply: “Because
Congressional consent places the interpretation of an interstate compact squarely
in the federal courts, those same courts have the authority to enforce the terms and
conditions of the compact.” (Doc. 46 at 28) (emphasis added)
Third, Taylor’s repeated assertions that the prosecutor “dragged his feet” or
engaged in “dilatory behavior” are not supported by the record. No evidence
supports the proposition that the late inclusion of blood & DNA evidence
recovered from Taylor’s sunglasses was anything other than a miscommunication
between various State agencies. (See Doc. 29, Ex. M at 21-22 (transcript of
hearing adjudicating trial counsel’s motion to suppress based on the late date of
disclosure and the State’s explanation of same)
Fourth, Taylor fails to establish that his constitutional right to a speedy trial
was violated under the standard established by Barker v. Wingo, 407 U.S. 514
(1971). The Wingo factors are “[length] of delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the defendant.” Id. at 530. No
single factor is dispositive: “[rather], they are related factors and must be
considered together with such other circumstances as may be relevant.” Id. at 533.
The Court addressed the prejudice prong as follows:
Prejudice, of course, should be assessed in the light of the
interests of defendants which the speedy trial right was
designed to protect. This Court has identified three such
interests: (i) to prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused; and
(iii) to limit the possibility that the defense will be
impaired. Of these, the most serious is the last, because
the inability of a defendant adequately to prepare his case
skews the fairness of the entire system.
Wingo, 407 U.S. at 532. In its analysis of prejudice as a result of the trial
continuances the Missouri Supreme Court considered only the fact that Taylor was
incarcerated at that time as the result of an unrelated conviction. This is only one
of three interests the right to a speedy trial was meant to protect. Yet Taylor fails
to establish any interest that was prejudiced by the delay. His conclusory assertion
in his reply brief that the delay “deprived him of the exculpatory evidence
contained in the videotaped statements of Gerjuan Rowe, Beverly Conley, and
Sherry Conley” does not suffice. (Doc. 46 at 30) Taylor fails to explain how the
videotaped statements would have differed, if at all, from the in-person testimony
Beverly & Sherry Conley actually provided at trial. (See Doc. 29, Ex. S at 31-33
(Beverly Conley) and 34-37 (Sherry Conley)) Nor does he explain how they
would have differed, if at all, from the excerpts of Gerjuan Rowe’s deposition that
were read to the jury at trial. (See id., Ex. S at 39) Nor, in fact, does he establish
that the videotaped statements were lost during the additional time resulting from
the delay. (See id., Ex. P at 47 (police detective testifying on direct examination
that hard drive containing videotapes had been accidentally erased, but not
identifying date on which accidental erasure occurred) and at 53 (cross-examining
police detective on same but declining to ask when erasure occurred))
Taylor did clearly and repeatedly assert his right to a speedy trial. The
length of the delay was considerable, though not “presumptively prejudicial” as
Taylor asserts. (Doc. 19 at 13) “[The] length of delay that will [generate
presumptive prejudice] is necessarily dependent upon the peculiar circumstances of
the case. To take but one example, the delay that can be tolerated for an ordinary
street crime is considerably less than for a serious, complex conspiracy charge.”
Wingo, 407 U.S. at 530-531 (footnote omitted).
The reasons for the delay are substantially attributable to Taylor, his
objections notwithstanding, because the continuances were granted at the request
of his defense team solely for the purpose of ensuring that he would be effectively
represented at his capital trial. This is true even if the defendant himself objects to
his counsel’s delay. See Vermont v. Brillon, 556 U.S. 81 (2009) (reversing
Vermont Supreme Court’s decision that three-year delay violated defendant’s
speedy trial rights where defendant’s attorneys requested extensions over his
Taylor failed to establish that his ability to defend himself at trial was
prejudiced by the delay, his interest in avoiding excessive pretrial detention was
negated by the unrelated 100-year sentence he was already serving, and he makes
no argument that his “anxiety and concern” were excessively burdened within the
meaning contemplated by Wingo. I find that the Missouri Supreme Court’s
determination of this issue was not contrary to, or an unreasonable application of
clearly establish Federal law, nor was it a decision based on an unreasonable
determination of the facts. As a result, I will deny this ground for relief.
2. Taylor’s constitutional right to present a complete defense was not
violated by the exclusion of hearsay evidence where that evidence lacked indicia of
reliability and was not otherwise admissible.
Taylor’s trial strategy was to argue that the victims were still alive after his
departure from St. Louis on November 26. His trial counsel therefore sought to
admit certain statements in support of that strategy which the trial court excluded
as hearsay. The Missouri Supreme Court summarized the relevant facts and denied
this claim on the merits in Taylor’s direct appeal:
… Hearsay Statements
… Taylor argues that the trial court abused its discretion
in excluding certain statements as hearsay. Taylor argues
that the statements were admissible pursuant to certain
exceptions to the hearsay rule or pursuant to the curative
Hearsay is an “out-of-court statement that is used to
prove the truth of the matter asserted and that depends on
the veracity of the statement for its value.” State v.
Kemp, 212 S.W.3d 135, 146 (Mo. banc 2007).
“Generally, courts exclude hearsay because the out-ofcourt statement is not subject to cross-examination, is not
offered under oath, and is not subject to the fact finder’s
ability to judge demeanor at the time the statement is
made.” Bynote v. Nat’l Super Markets, Inc., 891 S.W.2d
117, 120 (Mo. banc 1995). Exceptions to the general
prohibition against hearsay may apply when
circumstances assure the trustworthiness of the
declarant’s statement. Id. The exceptions argued in this
case are statements of present sense impression,
statements of declarant’s present mental condition, verbal
conduct, and the constitutionally recognized exception
under the due process clause.
For a hearsay statement to be admissible pursuant to the
present sense impression exception, the statement must
be made simultaneously, or almost simultaneously, with
the occurrence of an event or act, the statement must
describe or explain the event; and the declarant must
perceive the event with his own senses. State v. Smith,
265 S.W.3d 874, 879 (Mo. App. 2008) (citing 2
McCormick on Evidence § 271, at 251 (6th ed. 2006)).
These statements have certain indicia of trustworthiness
to support their admissibility. Id. Errors in memory and
time for calculated misstatements are not present because
the statements are made as declarant perceives the event
or immediately thereafter. Id. Further, in most cases, “a
witness will have observed the event and can corroborate
the hearsay statement, and the declarant will often be
available at trial for cross-examination to verify his or her
An out-of-court statement of the declarant’s present
mental condition is also admissible as an exception to the
hearsay rule so long as the statements are relevant and
their relevancy outweighs their prejudicial effect. State
v. Bell, 950 S.W.2d 482, 483 (Mo. banc 1997). This
exception is generally limited to cases “where the
hearsay declarations of mental condition are especially
relevant – particularly where the defendant has put the
decedent’s mental state at issue by claiming accident,
self-defense or suicide.” Id.
A hearsay statement may also be admissible as a verbal
act. State v. Copeland, 928 S.W.2d 828 (Mo. banc
1996); See Copeland v. Washington, 232 F.3d 969 (8th
Cir. 2000) (writ of habeas corpus granted on sentencing
defect). This includes statements written or oral that
have independent legal significance or effect. See Estate
of Oden v. Oden, 905 S.W.2d 914, 918 (Mo. App. 1995).
Lastly, an out-of-court statement may be admitted
pursuant to the constitutionally based exception in the
due process clause. This exception applies to hearsay
statements that “both exonerate the accused and are
originally made and subsequently offered at trial under
circumstances providing considerable assurance of their
reliability.” State v. Hutchison, 957 S.W.2d 757, 761
(Mo. banc 1997) (citing to Chambers v. Mississippi, 410
U.S. 284, 300… (1973)). Three circumstances of
reliability have been recognized: “1) each confession is
in a very real sense self-incriminatory and
unquestionably against interest; 2) each statement was
spontaneously made to a close acquaintance shortly after
the murder occurred; and 3) the statements are
corroborated by other evidence in the case.” Id. (internal
In addition to arguing exceptions to the hearsay rule,
Taylor argues that several of the statements are
admissible pursuant to the curative admissibility doctrine.
The curative admissibility doctrine applies when one
party introduces inadmissible evidence and allows the
opposing party to introduce otherwise inadmissible
evidence to rebut or explain inferences raised by the first
party’s evidence. State v. Middleton, 998 S.W.2d 520,
528 (Mo. banc 1999).
… Gerjuan’s Payphone Conversation
… Taylor argues the trial court abused its discretion in
excluding Gerjuan’s testimony that [Angela] Rowe told
her she was calling from a pay telephone on November
28th. Taylor argues that the testimony was admissible as
Rowe’s present sense impression or under the due
process clause. In addition, he argues that the testimony
was admissible pursuant to the curative admissibility
doctrine to refute the inference that Rowe and Gerjuan
did not speak to each other on that date from the absence
of a call to Gerjuan in Rowe’s home telephone records.
Gerjuan Rowe was served with a subpoena to testify at
trial. Gerjuan did not appear and the court issued a writ
of attachment. At the end of the State’s case, Taylor’s
counsel informed the court that the writ had not been
served, and that the defense intended to call Gerjuan as a
witness in the case. As a result, the court granted Taylor
permission to read portions of Gerjuan’s deposition into
evidence. The court, however, excluded the following
portion as hearsay:
A. [Gerjuan] We was out walking around, and she did
call me from a pay phone on Jennings Station Road and
West Florissant at the Amoco.
Q. [Defense] Okay.
A. And I was supposed to have been on my way that
way, but by my car not being legal and by Jennings
police being ass holes, I didn’t just go over there.
Q. But you knew she was at a pay phone then on the –
Q. – on the early morning hours –
Q. – of the 28th?
[PROSECUTOR]: How did you know she was on a pay
A. Because I asked her, I asked her, where are you? And
she said she was on the pay phone. And I said – I was
supposed to have been on my way to get her. I was
supposed to have been on my way to get her, that’s what
I was supposed to be doing. That’s how I knew she was
at the Amoco on Jennings Station Road and West
Q. [DEFENSE] Were you ever able to actually hook up
with her then?
The existence of the telephone call on November 28th
was admissible, and testimony regarding such a call was
admitted into evidence; however, evidence that Rowe
was calling from a pay telephone was hearsay and
Gerjuan’s testimony that Rowe told her that she was
calling from a pay telephone on November 28th was
hearsay. The statement was offered for the truth of the
matter asserted: that Rowe called Gerjuan from a pay
telephone on November 28th.
This hearsay statement is not admissible as a present
sense impression. The statement was about Rowe’s
location at a specific time in response to a question from
Gerjuan. The statement did not concern an event or
describe or explain an event that Rowe perceived.
Further, the statement lacks indicia of trustworthiness.
Taylor did not offer any evidence corroborating the
statement that Rowe made the call from a pay telephone
on November 28th. Although Gerjuan’s cell phone
records show an outgoing call to the pay telephone at
4:36 a.m. on November 28th, the statement was offered
to prove that [Rowe] placed the call from the pay
telephone. There is no record of an incoming call from
the pay telephone to Gerjuan’s cell phone or any
telephone, and there is no evidence of outgoing calls
from the pay telephone. Lastly, neither Rowe nor
Gerjuan was subject to cross-examination to resolve the
The statement is also not admissible pursuant to the
constitutionally based hearsay exception in the due
process clause because it lacks circumstances of
reliability. The statement was not against Rowe’s
interest or spontaneously made, and most importantly, as
discussed above, this statement is not sufficiently
corroborated by other evidence in the case. In addition to
the lack of evidence in the phone records, Gerjuan’s
testimony regarding the dates of events prior to the
murders, such as when she last saw Rowe, was
conflicting,5 and the circumstances of this telephone call
were also unclear.6
Early in the deposition, Gerjuan stated the last time she saw Rowe was:
… Saturday, the 20th. I borrowed fifty dollars from her
on Sunday, the 21st. I told her I was going to give it
back to her Monday. I didn’t hear from her on Monday,
so I called Tuesday, didn’t get an answer on Tuesday.
But I – it might have been – because I kept leaving voice
messages, I never talked to her, I just left a lot of voice
messages, I know that. My number was on that phone so
much to where I don’t – but I know Saturday – I seen her
Saturday, Sunday, got the fifty dollars, and talked to her
[A prosecutor] then asked if it was Monday, the 22nd, and she responded “Yeah,
talked to her Monday.”
Later, Gerjuan was asked about an interview she gave to police on December 3rd,
the day the bodies were found. The relevant portion of the deposition is:
Q. Now during that interview, do you remember telling
the police that you had seen Angela on Saturday
morning, the 27th?
A. (Witness nods.)
Q. You’re shaking your head “yes.”
Q. And that that’s when you asked to borrow some
money from Angela?
Q. And that Angela actually came over to your house on
that Saturday morning and gave you fifty dollars?
Q. Do you remember telling the police that?
A. Yes, I believe.
Q. And then do you also remember saying that you got a
call from Angela around three or four in the morning on
Sunday, the 28th?
A. Would that be Saturday-Sunday morning?
Q. Right, into the early morning hours.
Finally, the curative admissibility doctrine does not
apply. The State presented evidence of Rowe’s home
phone records and Gerjuan’s cell phone records. This
evidence was admissible, and as a result, Gerjuan’s
inadmissible testimony about the pay phone cannot be
admitted pursuant to this doctrine.
Gerjuan’s proposed testimony regarding Rowe’s
statement is hearsay and inadmissible. The trial court did
not abuse its discretion.
… Calendar Notations
… Taylor argues the trial court abused its discretion in
excluding Gerjuan’s testimony about Taylor’s prior
communication with Rowe and Rowe’s notations in the
calendar and in refusing to allow the jury to view the
notations in the calendar. Taylor alleges Gerjuan’s
testimony is admissible as Rowe’s present sense
impression of Taylor’s actions, as statements of Rowe’s
state of mind and under the due process clause. Lastly,
he argues that the testimony and notations were
admissible pursuant to the curative admissibility doctrine.
The trial court prohibited Taylor from reading into
evidence the following section of Gerjuan’s deposition
because it was hearsay:
A. Yes, yes, yes, yes, yes. He was gone maybe six days a
week out of seven days.
Gerjuan also testified that she spoke with Rowe on Thanksgiving, but Rowe never
showed up to dinner. The above portions of the deposition were read into
Gerjuan testified that on November 28th, she was “out walking around” when
Rowe called. She never said if Rowe called her cell phone or house telephone.
The only telephone record showing a pay telephone is an outgoing call on
Gerjuan’s cell phone.
Q. Would there be times when he wouldn’t call her even
to talk to her once he was on the road?
Q. Just was out of communication?
A. Phone off. Come over there.
The following portion of Gerjuan’s deposition regarding
Rowe’s calendar was read into evidence:
Q. [Defense counsel] I’m going to show you now what
I’ve marked as Defendant’s Exhibit 8, and see if you
recognize that. Just flip those pages, if you would.
A. [Gerjuan] Uh-uh. Yeah.
Q. Do the notes on that, it’s a calendar for 2004, do those
notes appear to be also in [Rowe’s] handwriting?
A. Yes, some of it. Yes, these is [Rowe’s], yes, I do
The following portion of the deposition was excluded as
Q. If you’ll go to November of 2004 –
A. Ooh. Ooh. Ooh. And this is us. I’m telling you, this
is what we do. I might have a calendar like this too.
Q. She keeps track in there of when he’s gone and –
A. Yes, yes, yes.
Q. That was just a habit she had, right?
Q. Now if you look at November 26th –
Q. – does she write “off” there?
Q. And that’s her handwriting as well?
Q. Now, had Angela discussed with you in November of
2004 that [Taylor] would be leaving town again or what
his schedule was going to be?
A. No. The only time I would know is when he might
not answer the phone or she was fed up with him, he had
done it too much.
Q. Tell me more what you mean by that.
A. Like I come back Monday, I’m leaving on
Wednesday, that’s too much. You just got back, you’re
fixing to leave again.
A. And when he would go, he stay gone weeks at a time.
A. Weeks at a time.
Rowe’s calendar with her notations was admitted into
evidence, but because the calendar contained hearsay, the
calendar was not published to the jury. The first month
included in the calendar is January 2004 and the last
month is January 2005. The notations in the calendar
were as follows.
From February to August, the notations include “didn’t
come home yet,” no call today” and “were home” and
each of these notations was followed by “L.T.” The
other entries on these days were personal appointments.
From September to November, “paycheck” and “off” are
written every other Friday and “work,” “off” or “home”
are written on every Saturday and Sunday. In addition,
written on most days up to November 15th is “home” or
“no show, no call,” but none of these entries contain
“L.T.” as in the previous months. The remaining entries
from November 15th through January 2005 are personal
appointments, with “off” and “paycheck” written every
other Friday. Specifically, on November 26th, the
notations are “off” and “paycheck.”
Rowe’s statement to Gerjuan and Rowe’s notations on
her calendar were hearsay. The statement and notations
were offered for the truth of the matter: that it was not
unusual for Taylor not to see or talk to Rowe for periods
Neither is admissible as a present sense impression.
There is no evidence that Rowe made these statements to
Gerjuan or wrote the notations simultaneously on the
discovery of the presence or absence of Taylor or shortly
after Rowe spoke to or spent time with him. The
statements and notations also lack indicia of
trustworthiness as neither Rowe nor Gerjuan was
available for cross-examination, there is no corroborating
evidence that Taylor was with Rowe or talked to her on
those days, and there is no evidence as to when Rowe
made this statement to Gerjuan.
The state of mind exception also does not apply to the
notations written on the calendar because the notations
are not statements of mental condition, and most
importantly, Rowe’s state of mind is not particularly
relevant because Taylor has not placed Rowe’s mental
state at issue.
The due process hearsay exception does not apply
because there exist no circumstances of reliability. These
statements and notations are not against Rowe’s interest
and were not made spontaneously after the event.
Further, the statements are not corroborated by other
evidence in the case. Although Gerjuan identified the
handwriting in the calendar as Rowe’s, Gerjuan had no
personal knowledge of the calendar and never witnessed
Rowe write any of these notations.
The curative admissibility doctrine does not apply. The
State’s evidence of telephone records from Rowe’s home
telephone and Taylor’s cell phone were admitted to show
that telephone calls between Taylor and Rowe ended in
November. The State also offered testimony of Rowe’s
employer to establish that Rowe was absent from work
on November 26th.
Because this evidence was
admissible, the inadmissible evidence of the testimony or
notations cannot be admitted pursuant to this doctrine.
Gerjuan’s testimony about the calendar and the notations
in the calendar are hearsay and inadmissible. The trial
court did not abuse its discretion.
… Check Carbon Copy
… Taylor argues that the trial court abused its discretion
in refusing to allow the jury to view Rowe’s checkbook
that contained a carbon copy of a “check” dated
November 27th. Taylor argues that the November 27th
“check” is relevant and does not contain hearsay. In the
alternative, he argues that if the “check” does contain
hearsay, it is admissible as a statement of Rowe’s state of
mind of her “belief that she was alive and physically able
to write a check on that date” or admissible as verbal
A checkbook was seized from Rowe’s home during the
investigation. The checkbook is a duplicate check
design, which contains a carbon copy paper behind each
Rowe’s checkbook contained a
duplicate of a “check” dated November 27, 2004. This
“check” is made out for the amount of $390.00, but the
“pay to the order” line is blank. Rowe’s home telephone
number is written in the memo line. The checkbook was
admitted into evidence, but it was not published to the
jury because it contained hearsay.
The “check” dated November 27th is hearsay. It was
admitted to prove that Rowe was alive on November
27th, which was one day after Taylor left St. Louis. The
“check” lacks reliability, as the payee line is blank, there
is no evidence that anyone received the “check,” or that
anyone had knowledge of the existence of the “check.”
Further, Taylor fails to show that an exception to the
hearsay rule applies. The date written on the “check” is
not a statement of Rowe’s present mental condition and
does not reflect any belief as to whether or not she was
alive on that date, and Taylor has not placed Rowe’s
mental state at issue.
The check is not admissible as a verbal act, because there
is no evidence that Rowe either completed or used the
“check” as a legal document. It was not negotiated.
There is no evidence that anyone received it, and there is
no evidence of the purpose or circumstance under which
Rowe wrote it, especially in light of the absence of a
person or entity listed as the payee. Estate of Oden v.
Oden, 905 S.W.2d 914, 918 (Mo. App. 1995), dealt with
completed legal documents acknowledged before
notaries that were self-authenticated. It does not help
Taylor, as this situation does not deal with a completed
The “check” is hearsay and inadmissible, and the trial
court did not abuse its discretion in refusing to publish
the checkbook to the jury.
… Rowe’s Statement to Gerjuan
… Taylor argues that the trial court abused its discretion
in excluding Gerjuan’s testimony of Rowe’s statement to
Gerjuan that Taylor’s relative lived at Rowe’s house.
Taylor alleges the testimony was admissibility under the
due process clause and the curative admissibility doctrine
to refute the inference that only Taylor could have
committed the crime from the absence of any forced
entry and the evidence that only Taylor had access to the
The trial court excluded the following portion of
Q. [Defense counsel] And I think you sort of said you
knew that [Taylor] had a brother, but do you know
anything more about him?
A. No. I don’t know if that was the brother or the cousin
that was living over there.
Q. But you knew someone was living at the house?
A. Uh-huh, in the basement.
Q. How did you know about that?
A. Because I asked her, I said, is he the only one over
there? She was like, no, his cousin had came from
somewhere and was supposedly living over there.
Q. She called him his cousin?
A. Yeah, or the brother, one of them.
There was no evidence that Gerjuan had ever visited
Rowe at her current residence prior to the discovery of
the bodies. At trial, Perry Taylor testified that he allowed
Rowe to use his vehicle when he was away as a truck
driver. There was also testimony that Perry kept some
belongings at Rowe’s home. In addition, Rowe’s
neighbor testified at trial, stating that she7 saw a man
walking out of Rowe’s house around Thanksgiving;
however, she did not recall the date and did not recognize
Gerjuan’s testimony that Rowe told her that Taylor’s
brother or cousin lived at Rowe’s house was hearsay.
The statement was made out of court and was offered for
the truth of the matter: that another person had access to
Taylor fails to show that an exception to the hearsay rule
applies to this testimony. The statement is not admissible
pursuant to [the] due process hearsay exception because
the statement does not exonerate  Taylor and lacks any
circumstances of reliability. The statement is not against
Rowe’s interest, was not made spontaneously after an
event, and was not sufficiently corroborated. Gerjuan
had never been to Rowe’s residence, and there was no
additional evidence that another adult, such as Taylor’s
brother or cousin, lived in Rowe’s home.
The Missouri Supreme Court refers to this neighbor as “she.” The trial transcript
reflects that defense counsel called Elmer Massey, identified exclusively by the
title “Mr.” See Doc. 29, Ex. S at 13-17. My review of the witnesses called at trial
confirms that Mr. Massey was the only witness called who was identified as a
neighbor of the victims.
The curative admissibility doctrine does not apply. The
State introduced testimony of three police officers, all of
whom stated that the windows and doors were locked,
the front door was undamaged, and the house was not
ransacked. The State also introduced several properly
admitted photographs depicting the condition of the
house, including the doors and windows. Because the
State referred to admissible evidence, Taylor cannot
introduce inadmissible evidence pursuant to this doctrine.
Gerjuan’s proposed testimony about the relative is
hearsay and inadmissible. The trial court did not abuse
The evidence at issue… was inadmissible, and the trial
court did not abuse its discretion. Furthermore, Taylor
was not prejudiced by the exclusion of this evidence.
Although the above statements were excluded as hearsay,
the jury was able to consider Gerjuan’s testimony that
she talked to Rowe on November 28th, Gerjuan’s
telephone records showing a telephone call at that date
and time, as well as testimony that Perry left some
belongings at Rowe’s home. Additionally, this evidence
pales in the light of Taylor’s confessions and other
State v. Taylor, 298 S.W.3d at 491-499 (bold typeface and first two footnotes in
original) (third footnote added).
In his habeas petition, Taylor cites Chambers v. Mississippi, 410 U.S. 284
(1973), for the proposition that “due process and the Sixth Amendment prohibits
states from mechanistically applying its rules of evidence, such as the hearsay rule,
to prevent a criminal defendant from presenting relevant and reliable evidence in
his defense.” (Doc. 19 at 17) Taylor also cites Crane v. Kentucky, 476 U.S. 683
(1986), for the proposition that “it is unconstitutional to exclude exculpatory
evidence based upon state evidentiary rules in the absence of any valid state
justification.” (Doc. 19 at 18) Taylor argues that “[neither] the trial court nor the
Missouri Supreme Court… applied the appropriate balancing of interests tests…
Instead, both courts mechanistically applied the hearsay rule ‘to defeat the ends of
justice.’” (Id. (quoting Green v. Georgia, 442 U.S. 95, 97 (1979))
Taylor then argues that the excluded evidence was reliable and admissible
pursuant to Chambers v. Mississippi for substantially the same reasons he
unsuccessfully advanced before the state courts. (See Doc. 19 at 18 (arguing that
phone record showing a call from Gerjuan’s cell phone to an Amoco gas station at
4:36 A.M. on November 28 supports reliability of Gerjuan’s testimony that Angela
called her from that gas station)); see also id. at 19 (arguing that calendar entries
were sufficiently reliable for admission because Gerjuan identified them as
Angela’s handwriting) and at 20 (arguing that carbon copy of check was similarly
reliable because of Gerjuan’s identification)).
Taylor also cites half a dozen cases from other federal and state jurisdictions
in support of the proposition that other courts have admitted similar evidence under
the hearsay exceptions the Missouri Supreme Court found inapplicable. (See Doc.
19 at 19 (citing State v. Newell, 710 N.W.2d 6 (Iowa 2006), and McBeath v.
Commonwealth, 244 S.W.3d 22 (Ky. 2007)); see also id. (citing Parle v. Runnels,
387 F.3d 1030 (9th Cir. 2004), and Davis v. Allsbrooks, 778 F.2d 168 (4th Cir.
1985)); see also id. at 20 (citing People v. Howard, 575 N.W.2d 16 (Mich. App.
1997), and United States v. Pang, 362 F.3d 1187 (9th Cir. 2004)).
Finally, Taylor argues that “[because] the evidence submitted by the
prosecution was primarily circumstantial, this constitutional violation cannot be
considered harmless.” (Doc. 19 at 20)
Respondent argues that this claim is not cognizable in a federal habeas
petition under Estelle v. McGuire, 502 U.S. 62, 72 (1991), and that “this Court
cannot re-examine the state court’s evidentiary rulings.” (Doc. 29 at 28-29)
Respondent further argues that the decision of the Missouri Supreme Court on this
claim is reasonable and entitled to deference. (Id. at 29) In the alternative,
respondent argues that this claim is without merit and distinguishes it from each of
Chambers, Crane, and Green:
Unlike Chambers or Green, wherein a third party
confessed to the crime for which the defendant was being
tried, the evidence here did not present “persuasive
assurances of trustworthiness.” Chambers, 410 U.S. at
302. The statement that the victim called her sister from
a pay phone was not corroborated by any phone records,
nor made under circumstances that would point to
heightened truthfulness. The same is true of the
statement that there was a male living in the victim’s
house. Similarly, there was no corroborating evidence
that the victim’s calendar notations were accurate or that
they were made contemporaneously with the events
about which they were written. Neither the victim nor
her sister were available for cross-examination on these
points. The victim’s check was never negotiated and
lacked any indication of the purpose with which it was
written. It cannot be said that the trial court excluded
these pieces of evidence without “any valid state
justification.” Crane, 476 U.S. at 690-91.
Further, and most importantly, none of the pieces of
evidence Taylor discusses exonerate him…. The pieces
of hearsay evidence at issue are: a statement that the
victim called someone specifically from a pay phone; the
victim’s handwritten calendar; a check purportedly
written by the victim; and a statement that an unidentified
male lived in the victim’s house. All of these statements
lack independent indicia of reliability and the court did
not err in keeping them out.
(Doc. 29 at 29-31)
In response, Taylor argues that “[this] claim is not subject to the standard of
review provisions of 2254(d) because the Missouri Supreme Court did not directly
address the due process component of the claim on direct appeal. Instead, the
court based its ruling completely on state hearsay rules. 298 S.W.3d at 491-499.
As a result, this Court is free to review this claim de novo. See Skillicorn v.
Luebbers, 475 F.3d 965, 972 (8th Cir. 2007).” (Doc. 46 at 31)
Taylor also argues in his reply that respondent “does not directly respond to
the argument that the state courts mechanistically applied state hearsay rules to
exclude exculpatory evidence central to petitioner’s defense… [and] asserts no
countervailing state interest in excluding this evidence. See Crane v. Kentucky,
476 U.S. 683, 690-691 (1986).” (Id.). Taylor attacks the probative value of the
State’s trial evidence, particularly the statement of Taylor’s brother Perry, and cites
seven cases in which habeas relief was granted “[despite] evidence that was much
stronger than the proof utilized here to convict [Taylor.]” (See Doc. 46 at 34
(citing Anderson v. Johnson, 338 F.3d 382 (5th Cir. 2003), and Trammell v.
McKune, 485 F.3d 546 (10th Cir. 2007)); see also id. at 35 (citing Spicer v.
Roxbury Corr. Inst., 194 F.3d 547 (4th Cir. 1999), and Reynoso v. Giurbino, 462
F.3d 1099 (9th Cir. 2006)); see also id. at 36 (citing White v. Roper, 416 F.3d 728
(8th Cir. 2005), Schlup v. Delo, 513 U.S. 298 (1995), and Clemmons v. Delo, 124
F.3d 944 (8th Cir. 1997)).
Taylor cites Brecht v. Abrahamson, 507 U.S. 619 (1993), for the proposition
that a constitutional violation must “have a ‘substantial and injurious effect or
influence in determining the jury’s verdict’ before it merits reversal on collateral
review.” (Doc. 46 at 37) (citing Brecht at 637) “In addressing this issue, the
Supreme Court instructed lower federal courts ‘to ask directly, Do I, the judge,
think that the error substantially influenced the jury’s decision?’” (Id.) (quoting
O’Neal v. McAninch, 513 U.S. 432, 436 (1995)).
After reviewing the parties’ submissions, the Missouri Supreme Court’s
opinion, and the underlying trial record, I find the following:
First, because the admission or exclusion of evidence is primarily a question
of state law, an evidentiary determination rarely gives rise to a federal question
reviewable in a habeas petition. Scott v. Jones, 915 F.2d 1188, 1190–91 (8th Cir.
1990). Federal courts “may not review evidentiary rulings of state courts unless
they implicate federal constitutional rights.” Evans v. Luebbers, 371 F.3d 438, 443
(8th Cir. 2004). To implicate a due process violation, the alleged improper
evidence must be “so egregious that [it] fatally infected the proceedings and
rendered [the] entire trial fundamentally unfair.” Anderson v. Goeke, 44 F.3d 675,
679 (8th Cir. 1995).
Second, Taylor’s argument that the Missouri Supreme Court “did not
directly address the due process component of the claim on direct appeal” and
“based its ruling completely on state hearsay rules” is completely without merit in
light of a plain reading of the opinion. See State v. Taylor, 298 S.W.3d at 493,
494-495, 497, 499 (expressly citing Chambers, 410 U.S. 284, and analyzing
applicability of hearsay rule’s due process exception to Taylor’s proffered
Third, Taylor’s argument that the circumstantial nature of the State’s
evidence affects the analysis of prejudice in this claim is without merit.
“Circumstantial evidence is ‘intrinsically as probative as direct evidence.’” United
States v. Cook, 842 F.3d 597, 602 (8th Cir. 2016) (quoting United States v.
Tschacher, 687 F.3d 923, 934 (8th Cir. 2012) (further internal quotation omitted).
Fourth, a phone record that Gerjuan made a call from her cell phone to a
payphone does not corroborate her deposition testimony that she received a call
from that payphone. Taylor asserts that “[clearly], this unassailable business
record provided strong corroborating evidence that the victim regularly
communicated with her sister from that payphone.” (Doc. 46 at 32). It does not.
The Missouri Supreme Court correctly assessed this argument through the lens of
Chambers and found it bereft of indicia of reliability: the phone records do not
show that Gerjuan received any calls from this payphone, Gerjuan was unavailable
at trial for cross-examination, and her testimony in her deposition was
contradictory and unclear. See note 7, supra at 36-37.
Fifth, the calendar notations were identified as Angela’s handwriting only by
Gerjuan, who was not present to testify at trial and was not cross-examined on her
ability to reliably distinguish her sister’s handwriting. There are no indicia in the
record of whether the calendar notations were made contemporaneously with the
dates they describe. Furthermore, the State called Angela Rowe’s supervisors to
testify during trial. They each testified that, contrary to the calendar notation
describing November 26th as “off,” Angela Rowe was scheduled for work on the
26th, 27th, and 28th, and did not appear or call in to work on those days. (See Doc.
29, Ex. Q at 41-44)
Sixth, Gerjuan’s ability to identify the carbon copy of the check as her
sister’s handwriting was not reliably established for the same reasons. There are
no independent indicia in the record of when the check was written to support
Taylor’s argument that it was written on November 27th.
Seventh, Gerjuan’s statement that a relative of Taylor’s also lived at
Angela’s house was not sufficiently supported by independent indicia of reliability.
Angela’s neighbor, Elmer Massey, testified at trial that he observed a man exit and
enter Angela’s house the week of November 29th, 2004. (See Doc. 29, Ex. S at
13-17) Massey could not identify whether he saw the man in question before or
after Thanksgiving, nor could he distinguish the man he claimed to have seen from
Taylor himself.8 The trial record establishes that Taylor’s brother Perry was
known to keep some of his possessions at the victims’ home, including his
The relevant portions of the trial transcript are as follows:
Q. [Defense] Mr. Massey, do you see that person in the
A. No, I wouldn’t recognize the face at this point.
Q. But you don’t see that person in the courtroom?
Q. [Prosecutor] Mr. Massey, do you remember the exact
date you think you saw the light skinned male at the
A. No, sir.
Q. Okay. And Thanksgiving was on the 25th of –
actually Thanksgiving 2004 was on Thursday the 25th,
could you have seen him on the 26th? Do you remember
A. I don’t recall.
(Doc. 29, Ex. S at 15)
personal vehicle. (Doc. 29, Ex. P at 44) However, the trial record also establishes
that Perry Taylor’s professional vehicle, with which he traveled and which was
tracked by GPS as part of his employment as a cargo truck driver, was out of St.
Louis until November 25th, was in St. Louis from the 25th through the 29th, and
departed St. Louis again on the 30th. (Id., Ex. P at 42) There are no other indicia
in the trial record of any other men living at the victims’ home, nor are there
independent indicia that Gerjuan ever visited her sister’s home.
Eighth, all of the cases Taylor cites in his petition are controlling are
factually distinguishable and none are sufficient to disturb the deference given to
the Missouri Supreme Court’s judgment under § 2254(d). I will briefly address
each case sequentially. State v. Newell, 710 N.W.2d 6 (Iowa 2006), admitted
testimony about a phone call made by a murder victim in which she “seemed
distressed, spoke in whispers, and stated [defendant] was standing there listening”
under the present sense impression exception to the hearsay rule. Id. at 17. The
testimony was offered by the victim’s ex-husband, who was the other party to the
conversation and was present at trial for cross-examination. By contrast, a
statement “about Rowe’s location at a specific time in response to a question from
Gerjuan… did not concern an event or describe or explain an event that Rowe
perceived.” Taylor, 298 S.W.3d at 494. The Missouri Supreme Court’s finding
that the word “event,” as contemplated by the present-sense exception to the
hearsay rule, does not encompass the act of making a call from a pay phone is not
unreasonable under § 2254(d)(2). “Further, the statement lacks indicia of
trustworthiness [because it was not corroborated and neither party to the alleged
conversation was available to testify at trial].” Taylor at 494. In McBeath v.
Commonwealth, 244 S.W.3d 22 (Ky. 2007), the Kentucky Supreme Court admitted
testimony from a witness who had heard one end of a phone conversation, then had
the substance of the other end (which contained the defendant’s statement)
explained to him immediately after the conversation ended. As in Newell, the
witness in question testified at trial and was subject to cross-examination.
In Parle v. Runnels, 387 F.3d 1030 (9th Cir. 2004), the Ninth Circuit Court
of Appeals reversed a district court’s holding that a murder victim’s diary entries
describing physical abuse by the defendant were inadmissible as present sense
impressions. The Ninth Circuit noted that:
Neither the diary itself nor the circumstances surrounding
its creation suggests that [the victim] had a motive to
fabricate descriptions of abuse in her diary…. She even
admits her own wrongdoing, confessing that she falsely
accused, deliberately provoked, and physically abused
petitioner – one time by stabbing him with a letter
opener. The diary contains statements that [the victim]
would not be likely to want anyone else to read:
statements that are personally damaging and that reveal
the most intimate details of her relationship with
petitioner. There was nothing unreasonable about the
state court’s determination that [she] lacked a motive to
falsify her own diary.
Parle, 387 F.3d at 1041. This is distinguishable from the case at bar, in which
there is no indication that the calendar notations were made contemporaneously
with the dates marked. Indeed, one of the purposes of a calendar is to note
upcoming events in advance as an aid to planning, as opposed to a diary which is
necessarily filled in shortly after the fact. Davis v. Allsbrooks, 778 F.2d 168 (4th
Cir. 1985), wherein the Fourth Circuit Court of Appeals affirmed the admission of
a murder victim’s diary, is distinguishable on similar grounds.
In People v. Howard, 575 N.W.2d 16 (Mich. App. 1997), the Court of
Appeals of Michigan upheld the admission of a murder victim’s appointment book
under the state of mind exception to the hearsay rule “as a declaration of where
[the victim] intended to go.” Id. at 30 (internal citation omitted). The present case
is distinguishable from Howard. In Howard, the victim’s son testified at trial, was
present for cross-examination, and identified the appointment book as his
mother’s. Id. Those indicia of reliability were absent in the present case. In
United States v. Pang, 362 F.3d 1187 (9th Cir. 2004), the Ninth Circuit Court of
Appeals upheld the admission of cancelled checks under the verbal act hearsay
exception. Id. at 1192 (internal citation omitted). The checks in Pang, unlike the
check at issue here, were fully filled out and delivered to a second party. Id. at
Ninth, Taylor’s contention that Respondent did not address his argument
“that the state courts mechanistically applied state hearsay rules” in violation of his
constitutional rights is belied by a plain reading of the response. Respondent
distinguished Taylor’s claim on the merits from Chambers, Crane, and Green.
(See Doc. 29 at 29-31; see also supra at 46-47) Respondent’s argument need not
cite the exact word “mechanistically” to respond to the substance of Taylor’s
Pursuant to O’Neal v. McAninch, I have considered whether I think that
Taylor’s claim of error substantially influenced the jury’s decision. McAninch, 513
U.S. at 436. I have concluded not only that the alleged error did not substantially
influence the jury’s decision, but that the Missouri Supreme Court correctly
affirmed the trial court’s exclusion of hearsay evidence to begin with, because that
evidence was not supported by the indicia of reliability required for the due process
exception to the hearsay rule. Although the “State [is not] permitted to exclude
competent, reliable evidence… when such evidence is central to the defendant’s
claim of innocence.” Crane, 476 U.S. at 690 (emphasis added), the evidence
excluded in this matter was neither competent nor reliable. As a result I will deny
Taylor’s second ground for relief.
3. Taylor’s trial counsel team was not constitutionally ineffective when they
declined to object to the admission and use of phone records, despite post54
conviction discovery that slightly undermined the probative weight of those
records, where the newly-discovered information did not refute the key proposition
for which the records were admitted and where Taylor’s conviction was
independently supported by other evidence; nor did the inclusion of such records
violate Taylor’s due process rights when neither the prosecution nor the testifying
witnesses were aware of the records’ discrepancies at trial.
At trial, the State introduced evidence in the form of phone records from
Charter Communications, which provided service to Angela Rowe’s home phone.
(Doc. 29, Ex. R at 62-74) Cathy Herbert, records custodian for Charter, testified
that the Charter records contained all outgoing calls9 from the victim’s phone and
some, but not all, incoming calls10. (Id. at 63) The State offered the Charter
The records’ representation of “outgoing” calls include calls in which the victim’s
home number is identified as the “caller” and Charter’s voicemail system is
identified as the “called” number. These represent calls made to the victim’s home
phone from an outside number which received no answer and were forwarded to
voicemail. Calls made by a person inside the home to check the voicemail are
instead represented by an entry showing the victim’s number calling itself. (See
Doc. 29, Ex. R at 64; see also id., Ex. AA at 36 (excerpt of records showing forty
such “forwarded to voicemail” calls between November 25 and December 1); see
also id. (showing six such “check voicemail” calls on November 24 and 25, and
none from November 25 through December 1)
The records of incoming calls included several that were highlighted in yellow,
denoting that they had been provided to Charter by another carrier for internal
billing purposes. Six such incoming calls were recorded between November 25
and December 3 in the Charter records. (Doc. 29, Ex. R at 68) At trial, Herbert
testified that each of these calls likely went to voicemail or was otherwise
unanswered based on the de minimis duration of each call. (Id. at 68-69) Under
cross-examination, Herbert admitted that she could not confirm whether or not
records to demonstrate a) that two outgoing calls were made from the victim’s
home phone shortly after midnight on November 24 to her sister Gerjuan; b) that
all remaining outgoing calls made throughout the 24th and the morning of the 25th
were either to check voicemail, to Taylor’s brother, to Southwest Airlines, or to a
family friend of the Taylors named Valerie Burke; and c) that no further outgoing
calls were made from Rowe’s home phone after the morning of November 25 until
December 3, when police had entered the home and discovered the victims’
bodies. (Doc. 29, Ex. S at 49; see also id., Ex. AA at 36)
Two defense witnesses, Beverly Conley and Sherry Conley, had previously
told police during their investigation that they last spoke with the victims on
November 27 and 28. (Doc. 29, Ex. S at 32, 35) Upon seeing the Charter records,
which did not support their statements to the police, Beverly and Sherry11 recanted
their earlier statements upon the belief that they must have incorrectly remembered
the dates of their last conversations. (Id., Ex. S at 33, 36) The Charter records
showed that the last contact between Beverly Conley and the victims’ home phone
was on November 21 and that there had been no contact between Sherry Conley
and the victims’ home phone between November 26 and November 30. (Id.)
these calls had, in fact, been answered by someone inside the victim’s residence.
(Id. at 73)
On direct examination, Sherry Conley did not recall her initial statements to
police. Defense counsel attempted to refresh her memory with her deposition,
during which she had stated that she had last spoken with the victims on November
27. (Doc. 29, Ex. S at 34-35)
The State also introduced evidence through Dan Jensen, records custodian
for Sprint, who testified regarding Sprint records for cell phones belonging to
Taylor, Taylor’s brother Perry, and Gerjuan Rowe. (Doc. 29, Ex. R at 38) Jensen
testified that these records contained all outgoing and incoming calls “in the
[Sprint] network.” (Id., Ex. R at 39) These records demonstrated a) that Gerjuan
called the victims’ home phone seventeen times on November 23, b) that Gerjuan
did not call the victims’ home phone between November 24 and December 3, and
c) that Taylor’s last call to the victims’ home phone was on November 22. (Id.,
Ex. R at 42) The Sprint records further demonstrated that Taylor and his brother
Perry made several calls during the late evening of November 23, the early
morning of November 24, and on December 4 after the bodies of the victims had
been discovered. (Id. at 40-41) These calls were made to each other, to their
mother Jessie Bland, and to Taylor’s wife Debrene Williams. (Id.)
The State used the Charter and Sprint records to support its argument that
Taylor killed Rowe and her children prior to his departure from St. Louis on
November 26, most likely in the early morning hours of November 24:
Let’s go back to Angela Rowe. One thing Angie did
consistently was talk on the phone. Thirty-six calls a day
she averaged from November 1st through November
23rd. Thirty-six calls. November 24th, 25th there’s
eleven calls made. Final nine calls, the first two calls
from that house are to Gerjuan Rowe, and they’re at –
excuse me, twenty-two minutes after midnight. On the
24th there’s a call from the victim’s house to Gerjuan
Rowe, that’s the last time. The next nine phone calls in
this graph… [are] Valerie Burke[,] [who] Perry Taylor
said [was a] long time friend of the [Taylor] family.
Perry Taylor, Valerie Burke, Perry Taylor, Southwest
Airlines, Southwest Airlines, Perry Taylor, Perry Taylor,
Perry Taylor. Those are not calls that Angela Rowe
would have made; they’re the calls the defendant’s
making. Her calls stop at 12:22 [A.M.]… The day her
phone calls stopped is the day she died.
(Doc. 29, Ex. S at 49)
In Taylor’s post-conviction proceedings, Taylor’s counsel discovered
several discrepancies within the Charter and Sprint records. Side-by-side
comparison of the Charter and Sprint records revealed that a total of four calls
from the victims’ home phone to Taylor’s cell phone on November 22 and 23, and
one call from the victims’ home phone to Perry Taylor’s cell phone on November
24, appeared on the Sprint records but did not appear on the Charter records. (Doc.
29, Ex. AA at 13-14) This contradicted the testimony of Cathy Herbert, records
custodian for Charter, who had testified at trial that the Charter records contained
all outgoing calls. Herbert was again called to testify at Taylor’s post-conviction
hearing. (Doc. 29, Ex. DD at 38-91) When presented with the side-by-side
comparison, Herbert stated that:
A. If I were provided these records I would have
acknowledged there was a discrepancy. I can’t testify to
the accuracy of [Sprint’s records], but I would have
acknowledged there is obviously a discrepancy, and it is
possible that one or the other could be incorrect or not
contain all of them.
Q. Okay. So you would at least have been able to
acknowledge if you were asked to make this comparison
and testify at the trial February 2008, you would have
then been able to at least acknowledge the possibility
those Charter records do not show all outgoing calls?
A. Could not, yes.
Q. Can you explain why the Charter records, at least
comparing these, appear not to show all outgoing calls?
(Doc. 29, Ex. DD at 55-56)
Taylor’s post-conviction counsel also elicited the fact that the victims’ home
phone appeared to have misidentified Gerjuan Rowe’s cell phone with a different
number on seventeen occasions. (Id., Ex. DD at 67) Herbert was unable to give a
definitive explanation for this misidentification, but opined that it might be the
product of technical errors or of calls being passed through another carrier’s
network. (Id., Ex. DD at 86)
Taylor’s post-conviction counsel also discovered that seven calls made from
the victims’ home phone to Gerjuan Rowe’s cell phone, all on November 22 and
23, appeared in the Charter records but did not appear in the Sprint records. (Id.,
Ex. DD at 68-71) This contradicted the testimony of Dan Jensen, records
custodian for Sprint, who had testified at trial that the Sprint records included all
outgoing and incoming calls on their network. Herbert opined, based on her
experience and training, that that discrepancy meant “[that] Sprint did not have
those incoming calls on their records.” (Id., Ex. DD at 71)
Jensen was also called to testify at Taylor’s post-conviction hearing. (Doc.
29, Ex. DD at 102-111, Ex. EE at 1-21) He was presented with the same
discrepancies and, like Herbert, was unable to identify a definitive cause, though
he testified that billing protocol, roaming on another carrier’s network, and
technical glitches were all possible explanations.12 (Id., Ex. EE at 2, 5, 8, 10)
When asked if Sprint “[guaranteed] a hundred percent accuracy of its records,”
Jensen answered “No.” (Id., Ex. EE at 7)
In addition to identifying discrepancies between the Charter and Sprint
records, Taylor’s post-conviction counsel raised the issue of Charter’s disclaimer
policy to attack the accuracy of the Charter records. Christopher Avery, senior
counsel for Charter, was called to testify. (Doc. 29, Ex. DD at 92-102) Avery
testified that Charter began using a standard disclaimer in March or April of 2009.
(Id., Ex. DD at 95) Avery testified that prior to that, Charter’s disclaimer policy
was as follows:
Q. … [What] if any disclaimer language was used by
Charter in responding to a record request to an outside
party in 2004 [at the time of the murders?]
A. No disclaimer language was used.
Q. And what if any disclaimer language was used by
Charter in responding to law enforcement requests or
subpoenas for outside – or for records in 2005?
Because the questions for Jensen were, as described by post-conviction counsel,
“virtually the same questions we asked Ms. Herbert,” discussing them at equal
length would serve no additional analytical purpose. (See Doc. 29, Ex. DD at 102)
A. For the first six months no disclaimer language was
used, some period after June 2005 but before March
2006, the 2006 disclaimer was used.
Q. Okay. And what if any disclaimer language was used
by Charter in responding to records request [sic] to an
outside party in 2007?
A. … “Please be aware that Charter’s billing records
from which the above information is obtained are subject
to human error, and Charter cannot always guarantee the
accuracy of such records. You should not rely solely on
this information, you should always independently
corroborate the information Charter provides you with
other information you have concerning the identity of the
Q. Why did Charter include this disclaimer language in
response to parties requesting records?
A. To make clear that to the requesting party that our
records are what they are, and they may contain errors or
omissions in them.
Q. From 2005 up to January 2008, if an attorney had
asked you if Charter guarantees the accuracy of its
telephone landline records, what would you have told
A. I would have told them that we don’t guarantee those
Q. Okay. And from 2005 to January 2008 if an attorney
asked you about disclaimer language used by Charter
from 2004 to 2007, in regards to its cell phone landline
records, would you have told them what you have
testified to here today?
A. I would.
(Doc. 29, Ex. DD at 96-100)
The State cross-examined Avery to elicit the fact that he had, in fact, been
present during Herbert’s depositions and had not given any such disclaimers:
Q. Mr. Avery, she just asked you some questions about
what you would have done, but in this case you appeared
in two depositions with Cathy Herbert; is that correct?
A. That’s correct.
Q. In either – in both of those cases you actually
appeared discussing things on the record; is that correct?
A. That’s correct.
Q. But you never mentioned anything about the
A. I did not.
Q. Never mentioned anything about any concerns about
the accuracy of the records or what Ms. Herbert was
Q. As a matter of fact you reviewed it as the attorney for
Charter, went over waiver of signature and whether to
review the deposition for Ms. Herbert; is that correct?
A. That’s correct.
Q. And during that deposition she’s saying look the
outgoing calls come from Charter records and we believe
in the accuracy of our records; is that correct?
A. That’s correct.
Q. But the incoming calls we get information from other
carriers and we are not as certain about those records?
A. That’s right. That’s correct.
Q. Okay. Given the opportunity at deposition you didn’t
say anything about a disclaimer?
Q. Or the reliability of the information?
Q. And did you, in your review of the records for this
case did you see anything where a disclaimer was sent by
Charter with any records that were received by either the
defense or law enforcement in this case?
A. No, no disclaimers were included.
(Id., Ex. DD at 100-101)
In his habeas petition, Taylor argues that his trial counsel was
constitutionally ineffective under Strickland for failing to object to the admission
of these phone records, for failing to adequately examine the phone records for the
discrepancies that later arose during post-conviction review, and for failing to
adequately attack their accuracy during direct and cross-examination. (Doc. 19 at
21-22) Taylor argues that the discrepancies discovered during post-conviction
proceedings prove that the Charter records did not show all outgoing calls, and
therefore “[if] the Charter records did not show all outgoing calls, then the Charter
records were not reliable to prove calls not made.” (Id. at 31) Taylor further
argues that his due process rights were violated because “the Charter records
custodian testified falsely that Charter’s records of the victims’ telephone
contained all outgoing calls.” (Id. at 21-22)
Taylor claims that an objection to the admission of the phone records would
have been sustained at trial because “1) a comparison of the available phone
records demonstrated that the records contained inaccuracies and omissions; and 2)
the State adduced no evidence that the companies’ computer systems reliably
produced accurate results.” (Id. at 34) Taylor cites State v. Dunn, 7 S.W.3d 427
(Mo. App. W.D. 1999)13, for the proposition that “the reliability of a computer
system or accuracy of the computer system’s results is a prerequisite to the
Taylor’s petition cites State v. Dunn as 73 S.W.3d 427, which is an incorrect
volume number. The correct citation for Dunn is 7 S.W.3d 427.
admission of computer-generated records.” (Doc. 19 at 34) Taylor argues that his
trial counsel’s failure to discover the records’ discrepancies was prejudicial to his
defense and constituted ineffective assistance under Strickland. (Id. at 35)
In addressing the due process portion of his claim, Taylor cites to Napue v.
Illinois, 360 U.S. 264 (1959), and argues that “[it] is well settled that a conviction
based on false testimony violates due process if it affected the judgment of the
jury. See United States v. Bagley, 473 U.S. 667, 678 (1985); see also Durley v.
Mayo, 351 U.S. 277 (1956).” (Doc. 19 at 41) Taylor also argues that “Ms.
Herbert’s false testimony… implicates the Eighth Amendment’s ban on cruel and
unusual punishment.” (Id.) Taylor cites McClesky v. Kemp, 107 S.Ct. 1756
(1987), and Schiro v. Farley, 114 S. Ct. 783 (1994), for the proposition that “[a]
decision in a capital case must reflect a heightened degree of reliability to satisfy
the Eighth Amendment… in all stages of a capital proceeding.” (Id. at 41-42)
Respondent argues that this claim was properly denied on the merits by the
Missouri Supreme Court on Taylor’s appeal from denial of post-conviction relief.
The Missouri Supreme Court’s decision held that:
… [Taylor] has failed to make a sufficient showing to
support Strickland’s prejudice prong because of the
overwhelming evidence presented that established his
guilt. He fails to demonstrate by a reasonable probability
that but for counsel’s alleged errors the result of the
proceeding would have been different. Id. at 694, 104 S.
The State presented overwhelming evidence of [Taylor’s]
guilt at trial. The phone records and the testimony in
question were but pebbles in the mountain of evidence
used to convict [Taylor] and are insufficient to
undermine confidence in the outcome of the trial as
required by Strickland. Id. The information presented at
trial, and set forth below, was more than sufficient to
support the jury’s verdict.
The State theorized that the murders took place before
[Taylor] left St. Louis November 26, 14 more specifically,
sometime late on the night of November 23 into the early
morning hours of November 24.15 The evidence at trial
as to when the murders took place was as follows:
Victim, described as a “good employee,” called in to
work November 21 but missed all of her shifts beginning
November 26 without calling her employer. Victim’s
children did not return to school Monday, November 29
following the Thanksgiving break. Newspapers in
victim’s yard started accumulating November 26, and her
mailbox was full of mail. All of the windows and doors
of victim’s home were locked when the police entered
December 3, and there were no signs of forced entry.
The police found [Taylor’s] fingerprints on a can of
Glade air freshener in victim’s kitchen. They recovered
10 bullets from the home, victim[,] and her children. All
had been fired from the same gun – a .38 or .357-caliber
In addition to the evidence found in victim’s home,
[Taylor] confessed to his brother that he killed victim and
her children.16 [Taylor’s] brother gave a taped interview
to the police on December 8. In that interview, he stated
that [Taylor] called him on November 24 and asked to
borrow money. [Taylor] said that he needed to get away
and that he had killed victim after she came at him with a
He killed her children because they were
All dates referenced… occurred in 2004 unless otherwise noted.
Thanksgiving Day fell on November 25 in 2004.
[Taylor’s] brother later claimed that his statement was coerced.
witnesses. The next day, [Taylor] again spoke with his
brother, telling him that he was still in victim’s home
with the bodies because he was waiting for a letter from
his wife.17 The police found an opened, unsigned letter
in victim’s home dated November 22 and postmarked
The letter contained four short
sentences: “Is your man faithful??? Eventually it all
comes out. Enjoy it now. Because he’s not yours.” In
addition to telling his brother about the letter, [Taylor]
also said that he had turned on the air conditioning in
victim’s home. When the police entered and located the
bodies December 3, they noticed that the thermostat was
set to the lowest setting, the air conditioning was on and
it was noticeably cool inside the home, unusual for
December in Missouri. All of this evidence supported
the jury’s verdict.
[Taylor’s] actions just prior to leaving St. Louis
November 26 also permitted an inference of guilt.
[Taylor] went to his sister-in-law’s home November 26
asking for a ride to the airport. His sister-in-law saw him
throw what appeared to be a long-barreled revolver into
the sewer near her home. [Taylor] told his sister-in-law
that he was leaving town because people were trying to
kill him and that she would not see him alive again. He
also warned her that she would hear things about him that
were not true. After she dropped him off at the airport,
he boarded a flight to Phoenix, then California, traveling
under the name Louis Bradley.
The vehicle [Taylor] drove to his sister-in-law’s home
presented additional evidence of guilt. He had parked the
vehicle, his brother’s Chevrolet Blazer, outside his sisterin-law’s home prior to leaving for the airport. The next
day, [Taylor’s] wife called her sister ([Taylor’s] sister-inlaw). [Taylor] could be heard in the background yelling
that the Blazer should be put into the garage. Later that
week, [Taylor’s] brother picked up the Blazer. The
[Taylor] lived with victim when he was in St. Louis but was married to a woman
who lived in California.
police found a partial box of Winchester .38 special
ammunition inside the car.
[Taylor] was arrested December 9 as he tried to leave
another girlfriend’s home in Kentucky. He attempted to
avoid authorities by lying on the floorboard of a car
leaving the home. After his arrest, he gave the police a
false name and Missouri identification with that name.
The police found additional identification with yet
another false name, as well as pamphlets about creating a
new identity, in [Taylor’s] belongings. A pair of glasses
he had been seen wearing before the murders was found
in his luggage. Forensic testing revealed the possible
presence of blood on one of the nose guard areas. The
sample was too small for further testing, but a partial
DNA profile extracted from the area eliminated the
children, but not victim, as a source. The DNA profile
was found in 1 in every 12,930 African-American
These facts indicate overwhelming evidence of guilt and
demonstrate that [Taylor] is unable to show that, but for
any alleged unprofessional errors of counsel, the result in
his trial would have been different. Having failed to
meet the “but for” prejudice test of Strickland, it is
unnecessary to review [Taylor’s] claims of ineffective
assistance of counsel under the alternative prong of
[Taylor] also urges this Court to reexamine the law as to
when a defendant is denied due process because he was
convicted through the use of false testimony. The Court
declines. For [Taylor] to prevail on his claim that due
process was violated and post-conviction relief is
warranted, he must show that: 1) the testimony given was
false; 2) the State knew it was false; and 3) his conviction
was obtained as a result of the perjured testimony. See
State v. Statler, 383 S.W.2d 534, 537 (Mo. 1964).
[Taylor] asks that the second requirement of the burden
Such a change would lead to the nonsensical result of
expecting the State to be able to read the mind of its
witnesses to refrain from having convictions overturned
when a witness gives testimony that he later learns is
false. Additionally, such a change would not be helpful
to [Taylor.] In this case, as the basis of his due process
representative’s trial testimony regarding its landline
records showing all outgoing calls from victim’s Charter
landline was false testimony. At the post-conviction
hearing, the Charter representative acknowledged that
when she testified at trial, she was under the impression
that Charter records did contain all outgoing calls; only
later did she discover that was not true. There is no
dispute that, at the time of trial, the State believed that
her testimony was true. Even if this Court chose to
revise the burden as [Taylor] urges, he still would be
unable to demonstrate that his conviction was obtained as
a result of the “false” testimony for the reason already
thoroughly discussed: there was overwhelming evidence
of [Taylor’s] guilt without the testimony of the Charter
(Doc. 29, Ex. II at 5-9) (emphasis and footnotes in original)
Respondent argues that this determination is reasonable and entitled to
deference under § 2254(d). (Doc. 29 at 35) Respondent also argues that this claim
is meritless, because despite the discrepancies in the records discovered during
post-conviction review, “[Taylor] still can point to no evidence of outgoing calls
from the victim’s home after Taylor left the state.” (Id. at 36) (emphasis in
original) Respondent argues that:
Counsel did not act unreasonably in failing to tire the
jury by nitpicking inaccuracies in phone records that do
not ultimately support Taylor’s defense theory…. Even
had the trial court known that the phone records
contained minor errors, there is no support for the
proposition that it would have excluded them for
“insufficient foundation” ([Doc. 19 at] 35). No evidence
comes with a guarantee of “one hundred percent
accuracy” ([Doc. 19 at] 34). As Taylor can point to no
evidence to prove his assertion that the victim was, in
fact, alive after he left the state, he cannot show prejudice
in the face of overwhelming evidence of guilt.
As to Taylor’s due process claim, he does not assert, as
he must, that the State knew their witness’s testimony
was false at the time it was given. See Napue v. People
of State of Ill., 360 U.S. 264 (1959) (State may not
knowingly use false evidence). Taylor, in fact, concedes
this point by saying “At the time of trial, Ms. Herbert
believed that the Charter records contained all outgoing
calls” ([Doc. 19 at] 27).
(Id.) (emphasis in original) Respondent distinguishes United States v. Bagley as
having dealt with the prosecution’s knowing use of false testimony, and further
distinguishes Durley v. Mayo as inapposite because it does not discuss the use of
false testimony at all. (Id. at 37)
In reply, Taylor argues that the Missouri Supreme Court made an
unreasonable determination of facts for purposes of § 2254(d)(2) by finding that he
was not prejudiced under Strickland. (Doc. 46 at 39) Taylor attacks the
sufficiency of the evidence as “closer to a ‘mole hill’ than a mountain[:]”
Again, there were no eyewitnesses to the murders,
[Taylor] made no incriminating statements to the police
after his arrest, no clear motive was established by the
state, and no ballistic or other physical evidence linked
him to the crime…. the medical examiner conveniently
and suspiciously changed his opinion regarding the time
of the death of the victims after learning of [Taylor]’s
alibi. Also… the Missouri Supreme Court assigned great
weight to [Taylor]’s alleged “confession.” Again, this is
an unreasonable determination of the facts because this
alleged “confession” was to [Taylor]’s brother who later
recanted his statements and testified at [Taylor]’s trial
that he had been coerced into giving this statement by the
Similarly, the other “overwhelming” evidence that the
Missouri Supreme Court lists is purely circumstantial,
(e.g., [Taylor]’s fingerprints on air freshener, bullets
found at victim’s home, [Taylor] allegedly throwing
something into the sewer, [Taylor] parking his vehicle at
his sister-in-law’s house, circumstances surrounding
[Taylor’s] arrest in Kentucky), and not direct evidence of
petitioner’s guilt. Finally, regarding the speck taken
from [Taylor’s] glasses, the chemical analysis made no
definitive determination that this genetic material was
blood… Given the romantic relationship between
[Taylor] and the victim, she could have left a speck of
DNA on petitioner’s glasses in any number of ways.
Because the Missouri Supreme Court made an
unreasonable determination of the facts under 2254(d)(2),
this Court is free to review this ground for relief de novo.
(Doc. 46 at 39-41) Regarding the due process component of this claim, Taylor
argues in his reply that “the state should have known that the records custodian’s
testimony was false.” (Doc. 46 at 44) Taylor also cites Tuggle v. Netherland, 516
U.S. 10 (1995), for the proposition that “a jury’s consideration of materially
inaccurate information in support of an aggravating factor cannot support a death
sentence,” and Gregg v. Georgia, 428 U.S. 153 (1976), for the statement that
“accurate sentencing information is an indispensable prerequisite to a reasoned
determination of whether a defendant shall live or die by a jury of people who may
never before have made a sentencing decision.” (Doc. 46 at 44-45)
After review of the parties’ submissions, the trial transcript, and the record
of Taylor’s post-conviction review proceedings, I find the following:
First, the decision of the Missouri Supreme Court affirming the denial of
post-conviction relief is reasonable and entitled to deference under § 2254(d). As
discussed in the excerpt of the Missouri Supreme Court’s decision, supra, the pillar
of evidence before the jury was sufficiently solid as to support Taylor’s conviction
even absent the use of the phone records. Taylor made the same attempts to
undermine that evidence at trial as he makes here, and the jury evaluated them and
found them unconvincing. (See, e.g., Doc. 29, Ex. S at 52-53) (questioning
whether Perry Taylor’s admission of Taylor’s guilt to police was coerced);18 id. at
53 (attacking probative value of material analyzed on Taylor’s glasses); id. at 54
(arguing that use of alias and attempts to avoid police in Kentucky indicative of
forgery but not murder); id. (attacking witness’ ability to accurately identify
firearm allegedly disposed of in sewer by Taylor); id. at 55-56 (accusing forensic
examiner of changing testimony in response to Taylor’s alibi); see also id., Ex. Q
at 53-56 (cross-examination of forensic examiner on this point), at 56-57
I note that the reliability Perry Taylor’s admission to the police that his brother committed the murders was
bolstered at trial by Perry Taylor’s friend Betty Byers. Ms. Beyers testified at trial that Perry Taylor told her within
a day or so of the murders that Leonard had called Perry and said he had killed Angela Rowe and her three kids.
She also testified that Leonard called Perry while he was at Ms. Beyers house on Thanksgiving and told Perry he
was still in the house with the bodies and had turned down the air conditioning. Doc. 29, Ex. Q at 21 22.
(rehabilitation of same on redirect), and at 57-58 (re-cross of same). Taylor also
argues that the evidence of guilt cannot be overwhelming because there is no direct
evidence of guilt. However, “[c]ircumstantial evidence is ‘intrinsically as
probative as direct evidence.’” United States v. Cook, 842 F.3d 597, 602 (8th Cir.
2016) (quoting United States v. Tschacher, 687 F.3d 923, 934 (8th Cir. 2012)
(further internal quotation omitted).
Second, the discrepancies Taylor’s post-conviction counsel identified in the
phone records and on which he now relies do not, in fact, establish the falsity of
Charter’s records. All they establish is that among the nearly four thousand
combined entries19 in the Charter and Sprint call records, a total of five appear on
Sprint’s but do not appear on Charter’s, a total of seven appear on Charter’s but do
not appear on Sprint’s, and a total of seventeen appear on Charter’s but were listed
under a different number. That could mean the Charter records are less complete
than they were represented to be at trial, but it could also mean the same of the
Sprint records, or of both simultaneously. Critically, it does not logically refute the
central point for which the State admitted the records: that after November 25,
2004, the complete absence of outgoing calls from the victims’ home phone
supported the proposition that they had been killed prior to Taylor’s departure from
(See Doc. 29, Ex. CC at 63 (decision of post-conviction court describing “over
2200 entries” from Angela Rowe’s home phone, “857 entries” from Perry Taylor’s
cell phone, and “805 entries” from Taylor’s cell phone).
St. Louis on November 26. Taylor’s trial counsel argued at trial that the phone
records were incomplete and could not be relied upon to prove a lack of activity at
the victims’ home; the jury considered that argument and rejected it. (See Doc. 29,
Ex. R at 63, 72-73; see also id., Ex. S at 51-52) An objection to the admission of
the phone records, even with knowledge of their discrepancies, would not have
been meritorious and Taylor’s counsel team was not ineffective under Strickland
for declining to make meritless objections. At best, Taylor’s trial counsel might
have been able to point to their discrepancies as additional cumulative support for
the unsuccessful argument that the phone records did not give a reliable picture of
activity at the victims’ home. That does not meet Strickland’s exacting
requirement that but for counsel’s alleged error, there was a reasonable probability
that the outcome of trial would have been different. Strickland, 466 U.S. at 694.
Third, the due process portion of Taylor’s claim fails because a) as
previously discussed, he does not establish that the testimony given was false, and
b) he does not establish that the State was aware of any falsity, if it existed. Each
of the cases he cites on this point deals with the knowing use of false testimony by
the State, and his argument that the State “should have known” something of
which the testifying witnesses themselves were unaware is completely
unpersuasive. Tuggle v. Netherland and Gregg v. Georgia are inapposite on this
point both because they deal with the use of aggravating sentencing factors rather
than evidence introduced during the guilt phase, but more critically because they
deal with “materially inaccurate evidence,” not the technical glitches and
discrepancies at issue here. Tuggle, 516 U.S. at 14 (emphasis added).
The Missouri Supreme Court’s decision on this claim is reasonable and
entitled to deference under § 2254(d). My independent review of the record,
including the call log excerpts contained in Taylor’s post-conviction review briefs,
has not revealed errors “sufficient to undermine confidence in the outcome” of
Taylor’s trial. Strickland, 466 U.S. at 694. As a result, I will deny Taylor’s third
ground for relief.
4. The inclusion of evidence regarding blood- and DNA testing of Taylor’s
sunglasses did not violate his constitutional rights, despite the late disclosure and
limited probative value of such evidence, where multiple continuances had already
been granted to defense counsel and where the jury was adequately instructed as
to the inconclusive nature of the tests concerned.
The Missouri Supreme Court accurately summarized the facts relevant to
this claim in its denial of Taylor’s direct appeal as follows:
When Taylor was arrested in December 2004, police
recovered a pair of sunglasses from a bag in Taylor’s
possession. On September 15, 2005, Taylor requested
notice of whether the State intended to use DNA
evidence, the type of DNA testing that would be
conducted, and whether the State had physical evidence
submitted for analysis or examination.
On May 25, 2006, Taylor filed a motion, requesting the
return of his personal property, including the sunglasses.
In August 2006, the State took possession of the
sunglasses from the police, and three months later in
November, the bag and sunglasses were brought to the
crime lab for testing. The phenolphthalein test was
performed in November 2006, and the DNA tests were
performed from December 2006 to January 2007. The
DNA report was completed in April 2007.
Taylor received the report from the phenolphthalein test
in March 2007 and the DNA report in April 2007. At
this time, the trial was set to begin on May 30, 2007. In
April 2007, Taylor filed a motion to exclude the evidence
of the phenolphthalein and DNA testing based on the late
disclosure, and alternatively, if the evidence was not
excluded, Taylor requested a continuance.
A hearing was held in May 2007 at which the State
explained that they disclosed the reports as soon as they
received them and did not withhold the evidence
purposely. The trial court overruled the motion to
exclude the DNA evidence and granted Taylor a
continuance until February 2008 with the “understanding
that the request is being made reluctantly and only due to
the facts and circumstances that gave rise to this motion.”
State v. Taylor, 298 S.W.3d 482, 501-502 (2009).
Although blood was not visually apparent on the
sunglasses, a phenolphthalein test – a presumptive test
used to determine if there is a possible presence of blood
– revealed a positive result on the sunglasses’ nose guard.
Because of the small size of the sample, a confirmatory
test was not conducted.
The stain on the sunglasses was also tested for the
presence of DNA. The analyst could not obtain a full
genetic profile because of the small size of the sample.
The results from the partial DNA profile eliminated
Rowe’s children as the contributors. Rowe was not
eliminated as a contributor. The partial DNA profile
obtained occurs in only one in 12,030 persons in the
African-American population. The source of the DNA,
whether from blood, hair, or saliva, could not be
determined from the test.
In May 2007, Taylor filed a motion to exclude these test
results. After a hearing, the trial court overruled the
motion to exclude and granted Taylor’s request for a
continuance to prepare and respond to the evidence. In
January 2008, Taylor filed a motion in limine to exclude
any evidence that the phenolphthalein test showed that
the substance found was or presumptively was blood.
The court conducted a hearing under Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923), about the
admissibility of the phenolphthalein test results and
overruled Taylor’s objection, allowing evidence of the
phenolphthalein test results as a presumptive test for the
presence of blood.
At trial, Taylor objected to the admission of this evidence
and the trial court overruled the objections. The forensic
scientist who conducted the tests testified that the
phenolphthalein test is a presumptive test because it also
can give a positive reaction to potatoes, rust, bleach[,]
and nickel. She emphasized that the substance on the
glasses was only “possibly blood” because there was no
During closing arguments, the State commented that the
sample was Rowe’s blood, not the children’s blood.20
The relevant portion of the State’s closing argument is:
[PROSECUTOR]: … DNA. Big fight about it. Small
amount. One in twelve thousand nine hundred thirty, I
believe, that it’s the victim. But the one thing [a forensic
scientist] was consistent on, it’s the victim’s blood, it’s
not the kids it’s the victim –
misstatement of the testimony.
Taylor objected that the argument was a misstatement of
the testimony. The trial court overruled the objection.
Id. at 499-500 (footnote in original).
THE COURT: The jury will recall the testimony.
[PROSECUTOR]: Remember that, the one nose piece is
where they swab, and detected I mean it .03 nanograms
of blood, but that’s one –
[DEFENSE COUNSEL]: Objection, Your Honor, I have
to object, nobody testified that it’s blood.
[PROSECUTOR]: I will take that back, Your Honor. It
was presumptively tested for blood. There wasn’t
enough to take a chance on not being able to test a
confirmatory test without doing DNA. That was a call by
[a forensic scientist], that was the right call to make. It
was presumptive blood. We have a bloody room, a
bloody struggle, and a piece of blood of Angela Rowe’s
on his glasses…
Taylor’s closing argument on this point is:
… Now, [the prosecutor] wanted to keep calling that
blood on those glasses. Oh, no. Nobody can tell you
that. The best you have is a lab technician who runs this
phenolphthalein test where she adds some chemicals and
she watches it, and then she gets to decide independently
if there’s a change in color after she applies those
chemicals. There’s no machinery, there’s no computer,
there’s no chart to gauge a color change but it’s a
judgment call… What do we know about that
phenolphthalein test? What did you learn about that
science? Blood is not the only thing that reacts. Horse
radish, potatoes, vegetables, rust, bleach, nickel, mental
alloyed [sic]. What was in the bag that they claim those
glasses came out of? Batteries. What’s in batteries?
Nickel. Where did these glasses come from? You’re
going to have to answer that question…
In his habeas petition, Taylor argues that the introduction of this evidence
violated his constitutional rights both a) because of the delay between the
sunglasses’ seizure and their testing, resulting in unfairly close proximity between
the disclosure of the testing and the trial date, and b) because the limitations of the
phenolphthalein test diminished its probative value to the point that its introduction
denied Taylor a fundamentally fair trial. (Doc. 19 at 42)
With regard to the delay in testing and disclosure, Taylor cites Ashker v.
Class, 152 F.3d 863 (8th Cir. 1998), for the proposition that a prosecutor’s reasons
for late disclosure are among the factors a reviewing court will consider in
determining whether that disclosure satisfied due process requirements. (Id. at 45)
Taylor further argues that:
Although the State was aware of [Taylor’s] speedy trial
request, it inexcusably waited almost two years to send
his sunglasses to the crime laboratory for testing and then
only weeks before the May 30th trial date disclosed the
results. Again, the trial court’s denial of [Taylor’s]
motion to exclude forced the defense to seek another
continuance over petitioner’s objections. The State’s late
disclosure violated the fair notice requirement of the due
process clause and petitioner’s rights to a fair and speedy
trial. See, e.g., Lankford v. Idaho, 500 U.S. 110, 120-121
(Id. at 46) With regard to the tests’ probative value, Taylor argues that habeas
relief is warranted where evidence is erroneously admitted and it “… ‘is almost
entirely unreliable and… the fact finder and the adversary system will not be
competent to uncover, recognize, and take due account of its shortcomings.’”
(Doc. 19 at 48) (quoting Barefoot v. Estelle, 463 U.S. 880, 889 (1983), superseded
on other grounds by 28 U.S.C. § 2253). Taylor argues that:
… because no confirmatory [blood] test was performed
on the material, any probative value the evidence had
was outweighed by its prejudicial nature.… This
evidence misled the jury into believing that the material
on [Taylor’s] glasses was in fact blood. Also, the fact
that the State performed a DNA test on the material did
not make this evidence any more admissible because the
DNA test could not confirm that it was blood instead of
some other substance…. Even if the DNA material
belonged to Ms. Rowe it could have been skin, hair, or
saliva, and given that she and [Taylor] lived together,
there was [sic] a number of ways it could have been
transferred to the glasses. Finally, it is uncertain how
long the material had been on the sunglasses.
(Doc. 19 at 49-50)
Respondent argues that this claim was denied by the Missouri Supreme
Court on the merits and that its decision was reasonable and entitled to deference
under § 2254(d). With regard to the timeliness of disclosure, the Missouri
Supreme Court held as follows:
The trial court has discretion to impose sanctions for
discovery violations under [Missouri Supreme Court]
Rule 25.03. State v. Edwards, 116 S.W.3d 511, 534 (Mo.
banc 2003). “A trial court’s denial of a requested
sanction is an abuse of discretion only where the
admission of the evidence results in fundamental
unfairness to the defendant.” Id. Such fundamental
unfairness exists if there is “a reasonable likelihood that
the failure to disclose the evidence affected the result of
the trial.” Id. Rule 25.03 governs discovery in a criminal
proceeding and requires the State to disclose upon
request any reports or statements of experts including
results of scientific tests, experiments, or comparisons.
The State had access to this evidence since Taylor’s
arrest in December 2004, but the tests were not
performed until shortly before trial. However[,] the State
disclosed the results as soon as they were completed, and
the record does not reveal bad faith on the part of the
State. Taylor was also provided additional time for
discovery and to prepare for trial on account of this
disclosure. Most importantly, trials are truth-seeking
procedures and exclusion of relevant evidence is not
The trial court’s decision to admit the evidence and grant
Taylor a continuance to determine how or if to respond to
this evidence was not an abuse of discretion.
(Doc. 29 at 41); see also State v. Taylor, 298 S.W.3d at 502. Respondent further
argues that this claim amounts to an attack on a state court’s interpretation of state
evidence law and is therefore not cognizable in a federal habeas petition under
Estelle v. McGuire, 502 U.S. 62 (1991). (Doc. 29 at 41) Respondent distinguishes
Taylor’s case from Lankford v. Idaho:
[Lankford was] a case in which a court unilaterally
sentenced a defendant to death without notice to either
side that the court considered capital punishment a
possible penalty. Here, the trial court accepted the
State’s blood evidence two and a half months before trial
and the DNA evidence five weeks before trial and still
allowed the defendant more time to complete his
(Doc. 29 at 43) (emphasis in original). Respondent also distinguishes Taylor’s
citation to Ashker v. Class, 152 F.3d 863: “[the] State is under no constitutional
obligation to even disclose inculpatory evidence… [and Ashker] is a case
evaluating late disclosure of exculpatory evidence under the requirements of Brady
v. Maryland, 373 U.S. 83 (1963). (Doc. 49 at 42) (emphasis in original)
Respondent argues that “[the] trial court was at liberty to allow late disclosure of
inculpatory evidence…. [and] protected Taylor’s rights to due process by allowing
the defense more time to react and prepare.” (Id.) (emphasis in original)
With regard to the probative value of the phenolphthalein and DNA tests,
Respondent argues that the Missouri Supreme Court’s decision on the merits was
reasonable and entitled to deference:
Scientific tests do not have to be conclusive to be
admissible. Although some states require that the test be
conclusive, other states have held that presumptive blood
tests are admissible as long as the test is accurately
described so it is helpful to the jury. See State v. Canaan,
265 Kan. 835, 964 P.2d 681, 694 (1998); State v.
Stenson, 132 Wash.2d 668, 940 P.2d 1239, 1264-65
(1997). If the jury is fully informed, the fact that the test
may react positively to substances other than blood
affects the weight given to the evidence, not its
admissibility. See State v. Ferguson, 20 S.W.3d 485, 495
(Mo. banc 2000); Canaan, 964 P.2d at 694.
The test results were relevant and admissible. Although
a conclusive test for blood was not performed, the
scientific testimony at trial informed the jury that the
phenolphthalein test was only a presumptive test,
indicating only the possible presence of blood, and that
no confirmatory test had been performed because of the
size of the sample. The evidence of the test results was
not misleading because the jury was informed of the size
of the sample and the nature and limitations of the test
performed and the respective results.
Taylor’s reliance on the decision in State v. Daniels, 179
S.W.3d 273 (Mo.App. 2005), is misplaced. Daniels
found that the trial court erred in permitting evidence of
positive luminol test results as conclusive proof of the
presence of blood in the defendant’s car and house
without conducting a Frye hearing to determine if such
tests are conclusive. Id. at 285.
In this case, the court conducted a Frye hearing prior to
admitting the results and the jury was well informed that
the test results only indicated the possible presence of
blood. Further, the DNA test results were consistent with
the positive presumptive test result for blood, producing a
partial DNA profile for which Rowe was a potential
The trial court did not abuse its discretion in admitting
the test results.
(Doc. 29 at 39-40) (quoting Taylor, 298 S.W.3d at 500-501). Respondent
distinguishes Taylor’s case from Barefoot v. Estelle, 463 U.S. 880 (1983), by
Taylor simply presents no evidence that the
[phenolphthalein and DNA testing] was “entirely
unreliable and… the fact finder and the adversary system
[were not] competent to uncover, recognize, and take due
account of its shortcomings.”… The adult victim’s
sunglasses passed a presumptive test for blood, a test that
admittedly could have been skewed by the presence of
several other substances. The expert witness informed
the jury about the limitations of the test… A DNA test on
the glasses excluded the children [sic] victims as
contributors but not the adult victim. The State argued
(Doc. 29 at 43) (quoting Barefoot, 463 U.S. at 899); see also Doc. 29, Ex. R at 35
(relevant expert witness testimony) and Ex. S at 49 (relevant closing argument).
In reply, Taylor argues that the portion of his claim pertaining to the delay in
disclosure is cognizable in a federal habeas petition because:
[Taylor] does not merely contend that the trial court
erroneously admitted evidence based on state law but that
error resulted from its admittance that rendered the trial
so fundamentally unfair as to deny [Taylor] due process
of the law. See Evans v. Luebbers, 371 F.3d 438, 443
(8th Cir. 2004) (holding that federal courts may review
state court evidentiary rulings if they implicate federal
(Doc. 46 at 45-46) (internal citation omitted) Taylor also disputes the trial court’s
ability to admit late-disclosed inculpatory evidence by claiming that “[in] Gray v.
Netherland, 518 U.S. 152 (1996), the United States Supreme Court took seriously
the notion that due process could be violated if a prosecutor knowingly and
affirmatively acts to deceive the defendant by concealing inculpatory evidence.”
(Doc. 46 at 46) Taylor argues that his citation to Lankford, 500 U.S. 110, is apt
because “Lankford holds that a capital defendant has a legitimate interest in the
character of the proceedings that leads to the death penalty. That interest embraces
the right to ‘[n]otice of the issues to be resolved by the adversary process.’” (Id.)
(quoting Lankford, 500 U.S. at 126).
With regard to the probative value of the tests, Taylor’s reply reiterates his
argument that the tests were too unreliable and prejudicial to be admitted under
Barefoot v. Estelle, 463 U.S. 880:
No confirmatory test was performed. This evidence was
highly misleading because it led the jury to believe that
the victim’s blood was on [Taylor’s] glasses when there
was no reliable proof that this material was blood. This
error was not cured by the DNA test because it also could
not confirm that the speck was blood…. The admission
of this evidence is even more troubling in light of the
state’s improper argument in closing that the speck was
blood splatter from the crime scene.
(Doc. 46 at 47)
After a review of the trial transcript, the Missouri Supreme Court’s opinion,
and the parties’ submissions in this matter, I find the following:
First, the portion of Taylor’s claim relating to the timing of disclosure is
cognizable in a federal habeas petition because his argument is not solely that the
trial court erred in a matter of state evidence law, but that the erroneous
introduction of this evidence violated his federal constitutional rights. Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (considering on the merits a challenge to a
state court’s admission of evidence on the grounds that such admission violated
petitioner’s due-process rights).
Second, the trial court did not violate Taylor’s due-process rights in allowing
late admission of the phenolphthalein and DNA tests several weeks before trial,
particularly because the trial court granted defense counsel a continuance as a
result. Taylor’s citation to Gray, 518 U.S. 152, does not support his position. To
the contrary, in denying the petitioner’s claim that he received insufficient notice
of penalty-phase evidence that was only disclosed to his counsel the preceding
evening, the Supreme Court stated in Gray that:
[While] a defendant’s right to notice of the charges
against which he must defend is well established… a
defendant’s claim that he has a right to notice of the
evidence that the state plans to use to prove the charges
stands on quite a different footing. We have said that
“the Due Process Clause has little to say regarding the
amount of discovery which the parties must be afforded.”
Wardius v. Oregon, 412 U.S. 470, 474… (1973). In
Weatherford v. Bursey, 429 U.S. 545… (1977), we
considered the due process claim of a defendant who had
been convicted with the aid of surprise testimony of an
accomplice who was an undercover agent. Although the
prosecutor had not intended to introduce the agent’s
testimony, he changed his mind the day of trial. Id., at
549… To keep his cover, the agent had told the
defendant and his counsel that he would not testify
against the defendant. Id., at 560… We rejected the
defendant’s claim, explaining that “[t]here is no general
constitutional right to discovery in a criminal case, and
Brady,” which addressed only exculpatory evidence, “did
not create one,” id., at 559… To put it mildly, these cases
do not compel a court to order the prosecutor to disclose
his evidence; their import, in fact, is strongly against the
validity of petitioner’s claim.
Gray, 518 U.S. at 167-168 (emphasis in original). Taylor had a full and fair
opportunity to prepare a response to the phenolphthalein and DNA tests and to
attack their probative value before the jury. His right under Lankford to effective
“[notice] of [the] issues to be resolved by the adversary process” was not impeded.
Id., 500 U.S. at 126. Beyond his bare assertion that the State delayed introduction
of this evidence in bad faith, Taylor presents no evidence supporting this assertion.
(Doc. 19 at 45) As I addressed in my analysis of Taylor’s first ground for relief, I
conducted a review of the record and did not find any evidence that the state
deliberately delayed the testing or otherwise proceeded in bad faith.
Third, and with regard to the probative value of the tests, Taylor has failed to
show that they were “almost entirely unreliable [such] that the factfinder and the
adversary system will not be competent to uncover, recognize, and take due
account of its shortcomings.” Barefoot, 463 U.S. at 899. The Missouri Supreme
Court reasonably found that the presumptive nature of the phenolphthalein test
affected its weight, not its admissibility. My review of the trial transcript confirms
that the jury was properly made aware of the test’s limitations:
Q [DEFENSE COUNSEL]. Now, this phenolphthalein
test that you use in the lab is not – does not exclusively
react to blood; is that right?
A. [EXPERT WITNESS]. Correct.
Q. It will react to vegetables?
A. There are certain substances that forensic literature
states that can cause or produce the same result, color
change result [in the examination.]
Q. A pink reaction?
Q. And that includes vegetables?
A. Some potato, horseradish.
Q. Rust –
Q. – will give you a reaction? Bleach will give you a
Q. Nickel will give you a reaction?
A. I believe so, I would have to check some literature.
Q. And these items can give the same pink reaction that
you get when you do the phenolphthalein test, whether
it’s blood of one of these items – or some of the other
items in the literature that reacts to this test?
A. It can.
Q. So when you get this pink reaction that doesn’t tell
you firmly that that is blood that you’re looking at?
A. No, all I can say is that it’s possibly blood.
Q. Now, you only tested one pair of eyeglasses; is that
Q. And that’s the pair that’s sitting in front of you?
Q. And that has a nose guard that’s missing from one
side of it?
Q. That’s all I have.
(Doc. 29, Ex. R at 35); see also id., Ex. S at 53-54 (reminding jury during closing
argument about the limitations of the presumptive test).
As a result, I will deny Taylor’s fourth ground for relief.
5. The exclusion of a prospective juror who expressed general opposition to
the death penalty did not violate Taylor’s constitutional rights when that juror
failed to clearly assert the ability to set aside her beliefs and follow the law in
considering the full range of applicable punishment.
In capital cases, “a criminal defendant has the right to an impartial jury
drawn from a venire that has not been tilted in favor of capital punishment by
selective prosecutorial challenges for cause.” Uttecht v. Brown, 551 U.S. 1, 9
(2007) (citing Witherspoon v. State of Illinois, 391 U.S. 510, 521 (1968)). The
State, however, “has a strong interest in having jurors who are able to apply capital
punishment within the framework state law prescribes.” Id. (citing Wainwright v.
Witt, 469 U.S. 412, 416 (1985)). To balance these interests, “a juror who is
substantially impaired in his or her ability to impose the death penalty under the
state-law framework can be excused for cause; but if the juror is not substantially
impaired, removal for cause is impermissible.” Id. (citing Witt, 469 U.S. at 424.)
“[In] determining whether the removal of a potential juror would vindicate the
State’s interest without violating the defendant’s right, the trial court makes a
judgment based in part on the demeanor of the juror, a judgment owed deference
by reviewing courts.” Id. (citing Witt, 469 U.S. at 424-434).
Taylor argues that the exclusion of a potential juror violated his
constitutional rights under the Sixth, Eighth, and Fourteenth Amendments. (Doc.
19 at 50) During voir dire, the following exchanges were had between counsel, the
trial court, and venireperson Kathleen Tumminia:
MR. KEY [prosecutor]: Anybody else on the panel of ten
here? Anybody else has a deep rooted personal belief
against the death penalty that you would not be allowed
to consider the full range of punishment? It’s important
for us, as it is for them, that you weigh the evidence, you
look at everything, you take your time and you
legitimately can consider life to death as punishment;
PANELIST TUMMINIA: I would have qualms about it.
I would have difficulty.
MR. KEY: You would have –
PANELIST TUMMINIA: I’m not certain I could go for
MR. KEY: Okay. And this is – your name is Kathleen
PANELIST TUMMINIA: Tumminia.
MR. KEY: Tumminia?
PANELIST TUMMINIA: Yes.
MR. KEY: And when I first asked the question Andrea’s
the only one that raised her hand. Are you on the fence
or are you saying now after listening to what I’m
explaining you don’t think you could ever give the death
PANELIST TUMMINIA: I find this an overwhelming
question – I find your question overwhelming at this
point, I’m not certain how I feel because I’ve never
considered it seriously before.
MR. KEY: Okay. And obviously when you all walked in
today you had no idea what kind of case you were going
to be walking into.
PANELIST TUMMINIA: Right.
MR. KEY: It’s not a stealing case, not a robbery case; it’s
the most serious case you can have in the State of
Missouri. So as you speak now, after you’ve listened to
all the facts in the case, thought there was enough facts to
convict him of Murder in the First Degree and then you
go to the second stage, and you’re sitting here now, and
there’s aggravating facts put on, mitigating fact put on.
Are you saying now that the shock of being here today,
the fact that you’ve never really considered, really
thought too much about the death penalty is what I’m
assuming, that you’re not sure you can follow the Judge’s
instruction, consider the full range of punishment?
PANELIST TUMMINIA: Well, I just think it’s such a
thorny issue, I don’t know if it’s a black/white, I can’t see
it being drawn very clearly right now because of all the
words like aggravated, mitigating, Judge’s instructions;
there’s so many things to take into consideration here.
And I don’t understand the whole ball of wax. To say
yes or no when you don’t understand the situation is
MR. KEY: What we’re asking you though is if you can
consider the full range of punishment. What I’m looking
for is people absolutely could not ever consider death.
They’re against the death penalty, they think it’s wrong,
they can never sit on a jury no matter, they will always
vote for life no matter what the facts are; is that what
PANELIST TUMMINIA: I’m not sure which way I
MR. KEY: It’s not so much which way you’ll go, if
you’re on the fence. You can never go for death if you
were put in this situation.
PANELIST TUMMINIA: Perhaps.
MR. KEY: So it’s not so much, you would say, life or
death. It’s at the point of the second phase you’re not
sure you can be back there and go, I don’t believe I’m
here, I can never give the death penalty?
PANELIST TUMMINIA: I don’t know if I could sleep at
MR. KEY: But the question I’m asking you, if you got to
the second stage do you think you would get back there, I
don’t know if I can consider the full range of punishment,
I think I might only consider life; is that what you’re
PANELIST TUMMINIA: I’m just saying I’m on the
fence, and I don’t know if I could be open to the whole
range of possibilities that you’re offering.
MR. KEY: That’s all I need.
(Doc. 29, Ex. N at 13-14)
MR. WOLFRUM [defense counsel]: Any members of
the panel engaged in earnest discussions with others
about your views on the death penalty, o rwritten
something for – I don’t know a class or publication about
your views about the death penalty? And I know I saw a
hand, is it – am I pronouncing –
PANELIST TUMMINIA: Tumminia, yes.
MR. WOLFRUM: I’ll go to Ms. Tumminia. Was it a
PANELIST TUMMINIA: I teach argumentation, I am
the debate coach for Lincoln-Douglas Debates. I’ve
published various balance sheets on both sides. I’ve been
involved politically, down in Potosi along the lines of
vigils, a member of Amnesty International.
MR. WOLFRUM: Okay. So you have written things
arguing both sides?
PANELIST TUMMINIA: Yes.
MR. WOLFRUM: Okay. And I know on the initial
questioning, I tried to write down what you say. So you
– sort of an overwhelming question?
PANELIST TUMMINIA: It is too huge to even, you
know, get your hands around for me, there’s so many
sides and issues involved.
MR. WOLFRUM: And that’s what we’re trying to do is
get our hands around it here, and you’ve had some time
to listen to both Mr. Key and me talk. If you found a
person guilty of the charges as I’ve described them, and
nobody’s asking you to commit to what you would do at
this point in time, understand that, would you be able to
give realistic consideration to both punishments that have
PANELIST TUMMINIA: I think I could be fair and
firm, I think I could isolate what takes place from my
emotional concern about life, my more – I guess spiritual
leanings toward my faith and such. I think I could be
fair, if I had a balance sheet in front of me.
MR. WOLFRUM: And I don’t know about a balance
sheet, but do you think you could follow the Court’s
written instructions –
PANELIST TUMMINIA: Yes.
MR. WOLFRUM: – as they’ve been described to you
here this morning?
PANELIST TUMMINIA: I think I could deal
realistically with it.
MR. WOLFRUM: And could you give realistic
consideration to both punishments?
PANELIST TUMMINIA: And I don’t think economics
has anything to do with it.21
THE COURT: I’m sorry, I didn’t hear the last part?
PANELIST TUMMINIA: I don’t think economics has
anything to do with it.
(Id., Ex. N at 22)
MR. KEY [prosecutor]: Your Honor, State would move
[to strike Panelist Tumminia] for cause.
THE COURT: Any objections?
MS. BEIMDIEK [defense counsel]: Yes. [Panelist
Tumminia], she did indicate she could consider both
MR. KEY: Your Honor, the State feels she was being
untruthful. When the State was talking to her she said
she wasn’t sure, she actually said she may not consider
death. And then when the defense is talking to her she
states she’s doing vigils down in Potosi. Obviously she’s
not doing the vigil hoping somebody will get the death
penalty. She’s on a debate team, she’s a teacher, she’s
down there doing a vigil against the death penalty. And
she never said that, when we bring it up during State’s
questions. Obviously there’s only one way she’s down
there doing a vigil. And when she says, when the State
was talking to her, she would probably not consider
death. And then when the defense is talking to her she
jumps on their side, and you know.
MS. BEIMDIEK: She did not say she was protesting one
way or the other. She described being in an academic
setting, argued both sides, studied both sides. She didn’t
say I’m down there saying don’t execute them. And the
State didn’t ask that specific question of her. She said I
could be fair. I’m a debate coach. Argued on both sides
This appears to be a reference to another venireperson’s prior statement that the
economic cost of life imprisonment would influence that venireperson’s
willingness to impose the death penalty. (See Doc. 29, Ex. N at 19)
of this issue. And so I think the mere presence at a vigil
does not necessarily mean she was protesting against a
THE COURT: I don’t think she ever came out and said –
I don’t know she was – she was asked the direct question
about five times, I don’t know that she ever gave a direct
answer to can you consider both punishments, life
without parole and death. I don’t think she was ever –
she ever answered that question. She – the last time it
was asked she said I think I could be fair, she never said
yes I can. I found that when she was responding to the
questions propounded by Mr. Key, that she said she
wasn’t certain, she was equivocating, she said I just can’t
– it’s such a big issue, I just can’t get my hands around it.
And she never answered the question one way or the
MR. WALDEMER [prosecutor]: Judge, I have in my
note she indicated she doesn’t know she could sleep at
night with the death penalty. She indicated she doesn’t
know she’s open to the whole range of punishment. As
you said she indicated I’m not certain, she couldn’t say
one way or the other. So our position would be she
certainly equivocated and can’t assure us that she can
consider both punishments.
MS. KRAFT [defense counsel]: Judge, I have in my
notes I have – the last question I have she was asked
could you realistically consider both punishments and she
THE COURT: I was looking for that from her and I
didn’t hear it. Can you go back the read her answers
back to us?
[Whereupon the court reporter read the questions and
answers of defense counsel and venireperson Tumminia].
THE COURT: So that’s not what she said. I will allow
(Id., Ex. N at 24)
The Missouri Supreme Court addressed this claim on the merits:
Juror Tumminia’s testimony regarding her ability to
consider the death penalty was conflicting. During the
State’s voir dire, she states that she would have
“difficulty” considering the death penalty and was not
certain if she could consider the full range of punishment.
During [Taylor’s] voir dire, she states that she could be
“fair and firm.” Further, she never directly answers
whether she could consider the full range of punishment.
Given this testimony, the trial court that observed Juror
Tumminia had broad discretion in determining her
qualifications. Taylor has not shown an abuse of
discretion. Point nine is denied.
State v. Taylor, 298 S.W.3d 482, 509 (2009).
In his habeas petition, Taylor cites Wainwright v. Witt, 469 U.S. 412, 424426 (1985), for the proposition that jurors morally opposed to capital punishment
may be removed only if their views would substantially impair their performance
and leave them unable to faithfully and impartially apply the law. (Id. at 51).
Taylor further argues that Witherspoon v. Illinois, 391 U.S. 510, 522, n. 21 (1968),
requires that death sentences resulting after such improper exclusions must be
treated as reversible error. (Id.). Taylor claims that Juror Tumminia’s answers:
… clearly did not indicate her views on the death penalty
would substantially impair or prevent the performance of
her duty as a juror. Witt, 469 U.S. at 424. While she
expressed general reservations about the death penalty,
there was no showing she could not faithfully and
impartially apply the law. Id. at 426. … The key passage
from voir dire establishing a constitutional error is Juror
Tumminia’s unequivocal answer that she could follow
the court’s instructions. See Gray v. Mississippi, 481
U.S. 648, 653 (1987). Although Ms. Tumminia never
expressly stated she could impose the death penalty, she
did emphatically state she could follow the court’s
instructions and “realistically deal with it.”
(Doc. 19 at 53) Taylor argues that his case is analogous to Adams v. Texas, 448
U.S. 38 (1980), in which the United States Supreme Court reversed a habeas
petitioner’s death sentence after determining that the trial court had erroneously
excluded jurors whose conscientious objections to the death penalty did not
substantially impair them from follow the law. (Doc. 19 at 53) Taylor also cites
Lockhart v. McCree, 476 U.S. 162 (1986), in further support of the same
proposition.22 (Doc. 19 at 53-54)
Respondent argues that the Missouri Supreme Court’s determination is
reasonable and entitled to deference. (Doc. 29 at 51) Respondent further argues
that Taylor’s claim is without merit, because:
… [This] juror could not once give a straight answer as to
whether she could consider both punishments… She was
not even able to state clearly that she could follow the
While the Supreme Court in Lockhart ultimately reached the opposite result and
denied that petitioner’s habeas claim on the merits, the relevant language is as
It is important to remember that not all who oppose the
death penalty are subject to removal for cause in capital
cases; those who firmly believe that the death penalty is
unjust may nevertheless serve as jurors in capital cases so
long as they state clearly that they are willing to
temporarily set aside their own beliefs in deference to the
rule of law.
Lockhart, 476 U.S. at 176.
court’s instructions; she first equivocated, then answered
affirmatively, then added a confusing statement at the last
second about “realistically dealing” with the court’s
instructions instead of following them.
(Doc. 29 at 52) (emphasis in original) Respondent maintains that Juror Tumminia
“was not excluded simply because she had generalized objections to the death
penalty. She was excluded because she simply could not state unequivocally that
she would be open to both kinds of punishment or that she could follow, rather
than ‘deal,’ with the court’s instructions.” (Id. at 52-53)
Respondent argues that Taylor’s case is distinguishable from Gray, Adams,
In Gray, the [trial] court allowed a cause strike of a juror
who stated that she could consider the death penalty and
could reach either a guilty or not guilty verdict. This
could not be farther from the situation at bar, where Juror
Tumminia never once stated that she could consider the
death penalty despite being asked numerous times by
both sides…. Juror Tumminia’s inability to ever commit
to a firm answer went beyond what would be expected of
one “taking her responsibility with special seriousness.”
Adams, 448 U.S. at 50. Nor did she ever “state clearly
that [she] [was] willing to temporarily set aside [her] own
beliefs in deference to the rule of law.” Lockhart, 476
U.S. at 176.
(Id. at 53) (emphasis in original)
In reply, Taylor argues that his case “closely mirror[s]” Wheeler v. Simpson,
779 F.3d 366 (February 20, 2015), in which the Sixth Circuit reversed the
imposition of a Kentucky inmate’s death sentence based on the exclusion of a
death-scrupled juror. (Doc. 46 at 49) The facts of Wheeler include a voir dire in
which the excluded juror gave answers materially similar to those of Juror
Tumminia. See Wheeler, 779 F.3d at 371-372 (finding that venireperson stated
that he “probably” could consider death penalty “after some deep reflection” when
questioned by trial judge, but that he agreed with prosecutor’s characterization that
he was “not absolutely certain whether [he] could realistically consider [the death
penalty] or not”).
However, the United States Supreme Court later overturned the Sixth
Circuit’s decision in Wheeler subsequent to the filing of his reply brief. (See Doc.
46 (filed March 23, 2015); see also White v. Wheeler, 136 S.Ct. 456 (decided
December 14, 2015).
The Supreme Court found that the Sixth Circuit:
… did not properly apply the deference it was required to
accord the state-court ruling. A fairminded jurist could
readily conclude that the trial judge’s exchange with
Juror 638 reflected a “diligent and thoughtful voir dire”;
that she considered with care the juror’s testimony; and
that she was fair in the exercise of her “broad discretion”
in determining whether the juror was qualified to serve in
this capital case. Uttecht, 551 U.S. at 20. Juror 638’s
answers during voir dire were at least as ambiguous as to
whether he would be able to give appropriate
consideration to imposing the death penalty. And as this
Court made clear in Uttecht, “when there is ambiguity in
the prospective juror’s statements,” the trial court is
“‘entitled to resolve it in favor of the State.’” Id., at 7
(quoting [Wainwright v. Witt, 469 U.S. at 434]).
White, 136 S.Ct. at 461 (string citations omitted).
After reviewing of the voir dire transcript, supra, I conclude that the United
States Supreme Court’s reversal of Wheeler on materially similar facts controls in
this case. As with Juror 638 in Wheeler, Juror Tumminia’s contradictory answers
failed to clearly demonstrate to the trial court’s reasonable assurance that her
conscientious objections to the death penalty would not substantially impair her
ability to faithfully follow the law. I find that the Missouri Supreme Court’s
determination of this issue is entitled to deference. As a result, I will Taylor’s fifth
ground for relief.
6. The prosecutors’ statements during voir dire and closing argument did
not violate Taylor’s constitutional rights, and Taylor’s counsel was not
constitutionally ineffective for declining to object to those statements.
A prosecutor’s objective is not merely “that [the state] shall win a case, but
that justice shall be done.” Berger v. U.S., 295 U.S. 78, 88 (1935). “It is as much
his duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one.” Id.
But federal habeas relief should be granted on the basis of a prosecutor’s improper
closing argument only where the impropriety is “so inflammatory and so
outrageous that any reasonable trial judge would have sua sponte declared a
mistrial.” James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999). The question is
whether prosecutors’ statements “so infected the trial with unfairness as to make
the resulting conviction a denial of due process… it is not enough that the
prosecutors’ remarks were undesirable or even universally condemned.” Darden
v. Wainwright, 477 U.S. 168, 181 (1986).
Taylor argues that prosecutors’ statements during voir dire and during
closing argument merit reversal. (Doc. 19 at 54) Taylor claims that the State:
[Made] an improper and prejudicial remark during voir
dire suggesting to several small panels of jurors that it
was appropriate and proper for them to lean in favor of
the death penalty because this case involved the murders
of three small children. ([Doc. 29, Ex. N at 29, 45-46,
86-87]). Two veniremen who heard these improper and
prejudicial remarks, Raymond Hartgraver and Arthur
Pruett, served on the jury.
(Doc. 19 at 56) Respondent first argues that this claim is procedurally defaulted,
because Taylor did not raise it in his direct appeal or on appeal from denial of postconviction relief. (Doc. 29 at 60) In the alternative, respondent argues that this
claim is meritless because it is “a blatant misstatement of the events.” (Id.)
In reply, Taylor argues that this claim was not procedurally defaulted,
because Supreme Court precedent requires only that he “have ‘fairly presented’ his
claims in state court.” (Doc. 49 at 50) (quoting Picard v. Connor, 404 U.S. 270,
275 (1971)). Taylor argues that “[a] federal habeas claim need only be ‘closely
related’ to the one advanced in state court, and the case law requires only an
‘arguable factual commonality’ between the two.” (Id. at 50-51) (quoting Kenley
v. Armontrout, 937 F.2d 1298, 1302-1303 (8th Cir. 1991)). Therefore, Taylor
[It] is clear that petitioner fairly raised a constitutional
challenge to several aspects of the prosecution’s
improper arguments during his state court direct appeal.
The fact that neither the state court brief nor his petition
quoted verbatim every improper argument does not mean
that the same substantive challenges to the same
improper arguments were not presented…. There is no
exhaustion or procedural bar issue precluding merits
review of this claim.
(Doc. 49 at 51)
I find some support for the claim that Taylor’s current argument attacking
prosecutors’ statements during voir dire was fairly presented in state court. (See
Doc. 29, Ex. U at 129 (direct appeal brief alleging improper prosecution argument
at closing but making no mention of voir dire); but see also id., Ex. Z at 104 (postconviction review brief arguing that trial counsel was constitutionally ineffective
for failing to object to allegedly improper prosecutors’ statements during voir dire);
id., Ex. CC at 55-56 (post-conviction review court’s analysis of that claim on the
merits); id., Ex. FF at 129 (appeal from denial of post-conviction relief, again
raising grounds that trial counsel improperly failed to object to prosecutors’ voir
dire statements); and id., Ex. II at 9, n.9 (Missouri Supreme Court’s denial on the
merits of appeal on that ground). I will therefore consider the merits of this portion
of Taylor’s claim.
Taylor’s contention that the prosecutor improperly sought to sway potential
jurors towards the death penalty during voir dire is belied by a plain reading of the
trial transcript. The relevant portions of the State’s questioning to which Taylor
cites are as follows:
[Even] though the evidence is going to be, along with a
lot of other facts, that a mother and her three children
were killed, that the jury never, ever has to impose a
sentence of death, can everybody assure me that they will
be able to follow that and keep an open mind? Now, it
doesn’t matter if you might have leanings one way or
another, what matters is that you’re able to keep an open
mind and keep an open mind up until the point that
you’re asked to deliberate and follow the Court’s
instructions about deciding unanimously on aggravation.
Can everybody assure me that they will do that?
(Id., Ex. N at 29)
[Do] you understand it is the obligation of the jury, even
with those facts that a mother and her three children,
three young children were killed is that – it’s still an
obligation to listen to evidence in aggravation and hold
the State to its burden of proof. And that if the State does
not prove a statutory aggravating circumstance beyond a
reasonable doubt to a unanimous jury of twelve, that the
jury must then return a punishment of life without parole,
can you all assure me of that? Does that present a
problem for anyone?
(Id., Ex. N at 45)
Can you keep an open mind through the entire case,
listen to mitigating evidence and still consider a verdict
of – or consider the option of life without the possibility
of parole, even know [sic] it’s a mother and three
(Id., Ex. N at 86)
I don’t expect any of you to hear that a mother and her
children were killed and you’re thinking I’m leaning
towards one particular sentence or another. And that’s
okay. The question to you now is can you keep an open
mind and still consider both punishments knowing what
you know at this point, and knowing that there will be
much more facts [sic] to come out in the trial; can you do
that for us?
(Id., Ex. N at 87)
These excerpts reflect the conduct of prosecutors who, far from attempting
to improperly sway potential jurors, were performing their due diligence in
separating out potential jurors for whom the sex and age of the victims would
prove so inflammatory as to overwhelm their capacity for reasoned deliberation at
sentencing. This line of questioning is not improper.
Taylor also argues that the State’s following closing arguments merit habeas
relief: first, “[the] argument that no phone records existed to corroborate Gerjuan
Rowe’s testimony that she spoke with her sister on November 28 because the call
did not show up on Angela Rowe’s home phone records” (Doc. 19 at 55) (citing
Doc. 29, Ex. S at 50, 57); second, “[the argument] that [Taylor’s] failure to call
Angela meant he must have known she was already dead, despite the fact that this
theory was expressly contradicted by entries on Angela’s calendar” (Id.) (citing
Doc. 29, Ex. S at 47); third, “a clearly improper remark calling attention to
[Taylor’s] failure to take the stand at the penalty phase to express remorse” (Id. at
56) (citing Doc. 29, Ex. T at 18); and fourth, “[urging] the jury to convict because
the defense did not call an independent expert witness to challenge the time of
death testimony provided by [the] medical examiner[.]” (Id.) (citing Doc. 29, Ex.
S at 58)
Respondent argues that this claim was denied on the merits by the Missouri
Supreme Court and that this decision is reasonable and entitled to deference. The
Missouri Supreme Court stated:
At trial, Gerjuan Rowe’s deposition was read into
evidence. The trial court found Gerjuan’s testimony that
Rowe called Gerjuan from a pay phone on November
28th was hearsay and inadmissible. However, testimony
as to the phone call was permitted. During closing
arguments, the State argued:
… what you know from these facts is that
the… last outgoing call to Gerjuan Rowe
was on the 24th at 12:22 a.m…. from the
victim[.] And if you look at the records…
you will not find the victim’s number after
communication between these two women,
sisters, from 11/24 after the – after twentytwo minutes after the hour ever again…
The State did not refer to the inadmissible statement in
Gerjuan’s testimony that Rowe had told Gerjuan that she
was calling from a pay telephone. In making its closing
arguments, the State referred to Gerjuan’s and Rowe’s
telephone records to refute Gerjuan’s testimony that she
spoke to Rowe after November 24th. The telephone
records as well as Gerjuan’s testimony that she spoke to
Rowe on November 28th were admitted as evidence. It
was not plain error to allow these statements.
Dr. Burch, the medical examiner, testified on direct
examination that Rowe and her children had been
deceased for two to three weeks before being discovered
on December 3rd. On cross examination, Dr. Burch
acknowledged that he previously stated in his first
deposition that the victims had been deceased for two to
three days before being discovered and that it was
unlikely they had been deceased since November 23rd.
Dr. Burch explained this discrepancy, stating that his
testimony in the first deposition did not account for the
fact that the air conditioner was turned to 50 degrees,
which affected the temperature in the house and his
assessment as to time of death.
During closing arguments, Taylor argued:
… What does Dr. Burch say in his initial
deposition before he got prepared by
learning that [Taylor] left on the 26th? Most
likely time of death was two to three days
before they were discovered.
discovered on the 3rd, what did Dr. Burch
say? Most likely time are [sic] these two to
three days before they’re discovered. That
is his medical opinion … [Taylor continues
to discuss the condition in which the bodies
were found] … And Dr. Burch wanted to
make some distinction which maybe you
understood, about 50 degrees. Well, my
opinion changed when I realized that here
was an air conditioner running in that house.
In rebuttal, the State argued:
… And believe me if there’s somebody else
that could refute Dr. Burch they would have
put them on the stand. And in his deposition
he said three to ten days. It happens on the
It is permissible for the State to make retaliatory
arguments at closing in response to issues raised by the
defense. State v. Clayton, 995 S.W.2d 468, 479 (Mo.
banc 1999). Here, the State’s argument responded to
Taylor’s argument regarding the credibility of Dr.
Burch’s testimony. The State’s comment that Taylor
could have called another witness to testify about the date
of death pertained to Taylor’s failure to present
additional evidence about this issue, not the failure to call
a particular witness.
(Doc. 29 at 54-58) (quoting State v. Taylor, 298 S.W.3d at 509-511). Respondent
further argues that each of Taylor’s contentions is meritless, procedurally
defaulted, or both:
Taylor takes issue with the argument that no phone
records corroborated [Gerjuan] Rowe’s testimony that
she spoke with her sister on November 28. This was the
truth. The fact that Gerjuan Rowe’s phone records show
that she called a gas station on that date does not
corroborate her testimony that the victim called her from
a gas station.
As for Taylor’s argument that the state unfairly
commented on the failure of the defense to hire an expert
to refute the State’s expert evidence, “the government
may comment on the failure of the defense, as opposed to
the defendant, to counter or explain the evidence [unless]
the jury would naturally and necessarily take it to be a
comment on the failure of the accused to testify.” United
States v. Gardner, 396 F.3d 987, 991 (8th Cir. 2005).
Taylor also objects to the argument that he did not call
the victim after November 26 because he knew she was
dead. Taylor suggests that calendar entries made by the
victim show that Taylor did not call simply because he
was routinely negligent in calling her. Taylor did not
raise this claim in his direct appeal ([Doc. 29,] Ex. U, pp.
26-37) or on appeal from denial of post-conviction relief
([Doc. 29,] Ex. FF, pp. 37-42). This claim, therefore, is
procedurally defaulted. It is also meritless. The victim’s
notations of when Taylor did and did not call her has
absolutely no bearing on Taylor’s motivation for not
calling her after he left the state. The State was free to
hypothesize as to his motive.
Taylor also claims the State “call[ed] attention to [his]
failure to take the stand at the penalty phase to express
remorse” ([Doc. 19], p. 56). Again this could not be
further from the truth. The State, in describing the
defendant, simply said “No remorse, no care” ([Doc. 29,
Ex. T at 18]). The Eighth Circuit has held that federal
habeas relief is not warranted for a claim that the State
referenced a lack of evidence regarding the petitioner’s
remorse. Edwards v. [Roper], 688 F.3d 449, 460 (8th
Cir. 2012). The Supreme Court has never clearly
established that a prosecutor cannot comment on the
evidence in a way that indirectly refers to a defendant’s
(Doc. 29 at 58-61)
I find that the Missouri Supreme Court’s disposition of this claim is
reasonable and entitled to deference under § 2254(d)(2). I further find that
Taylor’s claim is without merit for substantially similar reasons to those argued by
respondent, supra. As a result, I will deny Taylor’s sixth ground for relief.
7. Taylor’s Eighth Amendment right to a fair and reliable sentencing
proceeding, as determined by Deck v. Missouri, was violated by the application of
handcuffs in front of the jury after the pronouncement of jury’s guilty verdict.
Upon receiving the jury’s verdict, the trial court read it out and had the jury
polled to confirm its accuracy. (Doc. 29, Ex. S at 60) Immediately thereafter, the
trial court instructed the jury not to discuss the case any further pending the
completion of the next day’s sentencing phase. (Id.) The trial court then directed
that Taylor be removed from the courtroom, whereupon the following colloquy
[TRIAL COURT]: Gentlemen, would you please remove
(Whereupon the defendant was removed from the
[TRIAL COUNSEL]: Can we approach?
THE COURT: Sure.
(Whereupon the attorneys approached the bench and the
following occurred outside the hearing of the jury.)
THE COURT: Yes, ma’am.
[TRIAL COUNSEL]: Judge, as the Court instructed the
bailiff to remove the defendant from the courtroom one
of the bailiffs – or one of the transportation officers
placed handcuffs on Mr. Taylor’s wrists right in front of
THE COURT: He’s just been convicted of four counts of
Murder in the First Degree.
[TRIAL COUNSEL]: I understand.
Supreme Court case State vs. Carmen [sic] Deck says
that putting shackles or any kind of restraints on a
defendant in the presence of the jury is a violation of his
constitutional rights regardless of him being convicted,
and I request a mistrial.
THE COURT: I understand.
That request would be
The record contains no indication that Taylor was visibly restrained during
any portion of the sentencing proceedings the following day. (Id., Ex. T at 1-20)
At judgment several weeks later, counsel for the State asserted the following:
Just on one issue there was an issue concerning the
handcuffing of the defendant at the end of the reception
of the verdict of Murder in the First agree [sic], and the
other charges in the first phase of the trial. I believe
defense counsel objected and included that in their
motion for New Trial.
From the State’s perspective I just wanted to include a
couple of things for the record. Throughout the trial the
Department of Justice Services had informed the State
that defendant had an intention to act out, that there may
be a problem in the trial. I know that I did conveyed [sic]
that to the Court. From our perspective, from what we
were aware of.
I think also there was no prejudice to the defendant, in
the first phase of the trial it was made very clear from
both parties the defendant was confined throughout the
trial. The State in its case in chief played a tape of a
telephone call he made from the jail to his brother Perry
Taylor. So there was no prejudice to him in any event
because the jury was clearly aware of the fact he was in
custody the entire time.
(Id., Ex. T at 20) Taylor’s trial counsel took immediate exception to
the State’s argument:
[TRIAL COUNSEL #1]: Judge, there was no hearing
held on that, and there was no discussion of the sources
of that information, and that was never given prior to the
– to the time of the shackling, and no justification for it.
[TRIAL COUNSEL #2]: So the record is clear, Mr.
Taylor did nothing during the course of the trial to
disrupt the proceedings.
(Id. at 20-21) The trial court responded as follows:
I think I commented at the time at the side bar when the
motion for mistrial was made by counsel for the
defendant that the jury that had just seen the defendant
handcuffed was the same jury that sat through the
evidence for the first four days of the trial, had in fact just
returned verdicts of guilty against this defendant on four
counts of Murder in the First Degree and four counts of
Armed Criminal Action. And I think that was my only
comment at the time, and I denied the motion for
(Id. at 21)
In his habeas petition, Taylor argues that there “was no justification for
handcuffing [him] in front of the jury, which was obviously prejudicial by
suggesting to the jury that [he] was dangerous.” (Doc. 19 at 58) Taylor argues
that this, in turn, denied him his Eighth Amendment right to a fair and reliable
sentencing proceeding as determined by Deck v. Missouri, 544 U.S. 622 (2005).
(Id.) In Deck, the United States Supreme Court held that “the Constitution forbids
the use of visible shackles during the penalty phase, as it forbids their use during
the guilt phase, unless that use is ‘justified by an essential state interest’ – such as
the interest in courtroom security – specific to the defendant on trial.” Deck, 544
U.S. at 624 (internal citations omitted) (emphasis in original). The Supreme Court
explained in Deck that:
Although the jury is no longer deciding between guilt and
innocence, it is deciding between life and death…. The
appearance of the offender during the penalty phase in
shackles, however, almost inevitably implies to the jury,
as a matter of common sense, that court authorities
consider the offender a danger to the community – often
a statutory aggravator and nearly always a relevant factor
in jury decisionmaking, even where the State does not
specifically argue the point.
The constitutional requirement, however, is not absolute.
It permits a judge, in the exercise of his or her discretion,
to take account of special circumstances, including
security concerns, that may call for shackling…. But any
such determination must be case specific; that is to say, it
should reflect particular concerns, say, special security
needs or escape risks, related to the defendant on trial.
Id. at 632-633.
Respondent argues that the Missouri Supreme Court denied this claim on the
merits and that its decision is entitled to deference under the AEDPA. (Doc. 29 at
62-64; see also id., Ex. U at 37) The Missouri Supreme Court’s analyzed this
claim is as follows:
The trial court has discretion to grant a mistrial, which is
a “drastic remedy and should be employed only in the
most extraordinary circumstances.” State v. Brooks, 960
S.W.2d 479, 491 (Mo. banc 1997).
A defendant cannot routinely be visually shackled in the
guilt or penalty phase of a criminal trial “unless that use
is ‘justified by an essential state interest’ – such as the
interest of courtroom security – specific to the defendant
on trial.” Deck v. Missouri, 544 U.S. 622, 624… (2005).
“Although shackling in the presence of the jury should be
avoided if possible, not every incident in which a jury
observes the defendant in shackles requires a mistrial.”
Brooks, 960 S.W.2d at 491 (internal citations omitted).
In fact, “brief, inadvertent exposure of the jury of a
handcuffed defendant while he is being taken from one
place to another does not deprive defendant of a fair
trial.” State v. McMillian, 779 S.W.2d 670, 672
In Brooks, the defendant was handcuffed when the guilty
verdicts were read. 960 S.W.2d at 491. This Court
found that a mistrial was not warranted because the
defendant’s appearance in handcuffs was brief, occurred
only at the end of the guilt phase, and the defendant was
not otherwise restrained during the trial. Id. at 491-92.
The only time Taylor was visually handcuffed in front of
the jury was when he was escorted out of the courtroom
after the guilty verdicts were read. The jury had just
found Taylor guilty of four counts of first degree murder.
Taylor was not prejudiced, and the trial court did not
abuse its discretion in denying the mistrial request.
State v. Taylor, 298 S.W.3d at 511-512. In addition to arguing that the Missouri
Supreme Court’s decision is entitled to deference, Respondent distinguishes Deck
by arguing that Taylor was only shackled briefly, not “routinely” as prohibited by
Deck, and that the necessities of prisoner transportation and security concerns
articulated by the state were essential state interests justifying the use of visible
restraints. (Doc. 29 at 65)
In reply, Taylor argues as follows:
There is nothing in Deck that limits its holding to
situations where a defendant is continuously shackled
throughout the trial. The actual holding of Deck is that
“the Fifth and Fourteenth Amendments prohibit the use
of physical restraints visible to the jury absent a trial
court determination, in the exercise of discretion, that
they are justified by a state interest specific to a particular
trial.” ([Deck, 544 U.S.] at 629). In a close case like
this… a single act of shackling raises a strong
presumption in the jury’s mind that the defendant is
dangerous and very likely influenced the jury’s penalty
In addition, the Missouri Supreme Court’s mention of the
trial judge’s concern that he had information that
petitioner might try to disrupt the trial proceedings is a
“red herring” and totally irrelevant to the merits of this
due process claim. The inescapable fact remains that
petitioner did absolutely nothing to disrupt the
proceedings either before or after he was shackled at the
completion of the guilt phase of trial. Therefore, there
was no essential state interest to justify the bailiff’s
shackling of the defendant, and any finding to the
contrary is unreasonable under 2254(d)(2). In Deck, the
[United States Supreme Court] held that shackling is
“inherently prejudicial” and is only permissible in
“exceptional case[s]” where there are “indisputably good
reasons for shackling.”
Deck, 544 U.S. at 635.
Therefore, habeas relief is warranted because the
Missouri Supreme Court’s decision is contrary to and
unreasonably applied Deck.
(Doc. 46 at 53-55)
Taylor argues that under Deck, he need not prove injury once he has
established the existence of a shackling error. (Doc. 19 at 59) The Supreme Court
stated in Deck that “where a court, without adequate justification, orders the
defendant to wear shackles that will be seen by the jury, the defendant need not
demonstrate actual prejudice to make out a due process violation. The State must
prove ‘beyond a reasonable doubt that the [shackling] error complained of did not
contribute to the verdict obtained.’” Deck, 544 U.S. at 635 (quoting Chapman v.
California, 386 U.S. 18, 24 (1967).
Respondent argues that Deck is distinguishable because:
Taylor was not “routinely shackled in front of the jury”
without “an essential state interest.” [Deck at 632]. The
shackling was brief and necessary for the purposes of
prisoner transport, not routine throughout trial as in Deck.
The State had previously made the trial court aware of
security concerns with Taylor so an essential state
interest had been articulated.
(Doc. 29 at 65)
I find that Respondent has proven beyond a reasonable doubt that the
shackling error did not contribute to the imposition of the death penalty, because
the jury’s opportunity to view Taylor in handcuffs was de minimis in duration and
of negligible weight next to graphic evidence of aggravating factors.
Taylor’s argument that this “single act of shackling raises a strong
presumption in the jury’s mind that the defendant is dangerous and very likely
influenced the jury’s penalty phase verdict” is unpersuasive. (Doc. 46 at 54) The
jury had, by that point, observed gruesome photographic evidence of the murders
of four victims by gunshot wounds to the head, three of whom were children aged
ten and younger. (Doc. 29, Ex. P at 59-62, Ex. Q at 46-50) At sentencing the next
day, the jury heard evidence of Taylor’s prior convictions, including possession of
cocaine with intent to distribute, forgery, and two forcible rapes, one of which was
perpetrated against his sixteen-year-old stepdaughter. (Doc. 29, Ex. T at 7-9) The
jury heard testimony from family members of the victims describing the emotional
toll taken by the murders of their loved ones. (Id. at 9-11) Because Taylor forbade
his trial counsel from arguing a case in mitigation at the penalty phase, this
testimony was unopposed. The argument that the jury’s decision to impose the
death penalty was “very likely” influenced, amidst this evidence, by a momentary
glimpse of Taylor being handcuffed as a precursor to transport is without merit.
As a result, I will deny Taylor’s seventh ground for relief.
8. Taylor did not receive constitutionally ineffective assistance of counsel
when his trial counsel obeyed Taylor’s decision to not make a closing argument at
the penalty phase of the trial.
After being convicted, Taylor directed his trial counsel team not to present
any mitigation evidence or closing argument at the penalty phase of the trial. To
ensure that Taylor was fully informed of the consequences of that decision, the
trial court engaged in the following colloquy:
THE COURT: Mr. Taylor, do you want to come up with
(Whereupon the attorneys approached the bench and the
following occurred outside the hearing of the jury.)
THE COURT: Mr. Taylor, we’re about to proceed with
this, the second stage of the trial, the punishment phase
on the jury’s finding of guilt to four counts of Murder in
the First Degree. Just a few moments ago I was
approached by your attorneys who indicated to me that
you have instructed them in this phase of the trial that
you do not want them to – well, let me ask you, first,
you’ve given them certain instructions about how you
want them to conduct this second phase of the trial. Why
don’t you tell me what it is that you told them, what
limitations you’re putting on them.
THE DEFENDANT: I have instructed my attorneys not
to argue anything in this portion of the trial, this penalty
phase. As a Muslim we do not ask for other men
something they cannot give us or take from us. I would
never ask another man or jurors for a dime which they
could give me, and being that I definitely wouldn’t ask
them for my life, which they can’t take nor can they give.
Only Allah can do that. So to concede to that would be
giving them a false sense of authority they don’t have.
Neither they have that nor you. And if it’s Allah’s will
I’ll die tonight, tomorrow, fifty years from now.
THE COURT: The second phase procedure following the
second phase, both sides, the State and your lawyers are
allowed to make opening statements. And the opening
statements are basically confined to what they expect to
present as evidence in this second phase of the trial. It’s
my understanding, and I’ll direct this to [trial counsel],
you do have some evidence that you were going [to]
present on behalf of Mr. [Taylor]; is that correct?
[TRIAL COUNSEL]: Well, I’ve discussed this with Mr.
Taylor and I think he is okay with us basically indicating
[to] the jury not much more than we do have some
evidence by stipulation regarding his behavior while
incarcerated, and think he’s indicated he’s okay with that.
THE COURT: And that’s correct?
THE DEFENDANT: That’s the only thing I will allow
them to enter into stipulation as to whatever my conduct
has been while incarcerated, or so forth. So on that
matter not either – whatever else will be.
THE COURT: Once the evidence has been concluded
then both sides are going to have an opportunity to argue
this case and argue – I guess they’ll argue the evidence
that has been presented. And I’m sure if it follows, the
course followed in the past, the State will be asking the
jury to impose the death penalty. Your lawyers, if
allowed, would ask the jury to spare your life. Are you
asking them not to do that?
THE DEFENDANT: Your Honor, I would never ask
another man not to do something they have no power to
do. Only Allah can spare my life, only Allah gave me
life. So if they impose a death sentence that means
nothing to me, okay?
THE COURT: I understand. The position you’re taking
is going to severely hamper your attorneys in their efforts
to try to spare your life, do you understand that?
THE DEFENDANT: I’m not going – I wouldn’t ask you
to spare my life, I would not allow them to do that
because you have no power to do that, you have no
power to take my life.
THE COURT: I guess my question to you, do you
understand you’re really hamstringing them in terms of
presenting a defense for you?
THE DEFENDANT: What I understand is this here,
Your Honor, I’m leaving the power of life and death in
the hands of Allah who’s the only person who has that
power. It would not be the prosecutor, no juror, no one
else for my life, only Allah can give that, only Allah can
take that. At birth every man was sentenced to death, it
may be a day, it may be a year, it may be a hundred
eyars, but you’re guaranteed to die, you know, so we’re
not afraid of that if it be that. It may not be that.
THE COURT: It is your decision, I’m satisfied it’s not a
decision forced on you by anybody. You’re taking this
position through your own volition and this is your
decision; is that correct?
THE DEFENDANT: I’m a Muslim.
THE COURT: I understand.
THE DEFENDANT: And as we establish ourselves
through positive action and live by that, whatever the
course may be, and we except [sic] that. Now if they
want to argue for death, go ahead, but we’re not going to
beg them or anybody else.
THE COURT: I want this record to be perfectly clear this
is your decision.
THE DEFENDANT: It’s my decision.
It’s a last
THE COURT: You’ve gone through and communicated
to your lawyers and now you’ve communicated to me it
is your decision.
THE DEFENDANT: Yes, sir.
THE COURT: All right.
THE DEFENDANT: Ma sha Allah.
(Doc. 29, Ex. T at 5-6) Upon the closing of the state’s presentation of evidence,
the trial court invited Taylor’s trial counsel to read the stipulation of his good
behavior while incarcerated, which resulted in the following colloquy:
[TRIAL COUNSEL]: Judge, we do not have any
THE COURT: Ladies and gentlemen, at this time I’m
going to – we’re going to take a brief recess. There are
some additional instructions that we’re going to have to
work on now. …
(Whereupon the Court admonished the jury, after which
there was a recess, after which the following occurred in
open court outside the presence of the jury.)
THE COURT: Mr. Taylor, it was my understanding after
our discussion here at the bench a few minutes ago you
were going to permit your attorneys to offer evidence by
way of stipulation as it related to your behavior and
conduct while incarcerated. When I called on [trial
counsel] to present any evidence that she might have on
your behalf, at that time you motioned to her, she went
over, she had a whispered conversation with you, and she
offered no evidence. Was that at your direction?
THE DEFENDANT: Yes, sir, it was.
THE COURT: You haven’t changed your mind.
THE DEFENDANT: I didn’t want her the [sic] read it.
THE COURT: I thought you told me earlier you had no
problem with the stipulation?
THE DEFENDANT: We were to stipulation that it could
be entered but not that she would read it, that’s not –
THE COURT: Well, without her reading it, it won’t get
in front of the jury; do you understand that?
THE DEFENDANT: That’s fine.
THE COURT: I mean, I guess they could ask it be passed
to the jury or the jury may be allowed the [sic] read it at
some later time.
THE DEFENDANT: That was my understanding that
would take place.
THE COURT: The jury would be allowed to view it but
it would not be read to them, is that what you’re saying?
THE DEFENDANT: Yes, sir.
[DEFENSE COUNSEL]: We would ask leave to mark it
and offer it in evidence. There was a misunderstanding.
THE COURT: All right. Sure. All right. You can have
[DEFENSE COUNSEL]: Your Honor, at this time we
would – we’ve marked the stipulation concerning
corrections records as Defendant’s Exhibit RR and we
ask that it be admitted at this time.
[PROSECUTOR]: No objection.
THE COURT: It will be received.
(Id. at 12)
Taylor now argues that his trial counsel team was unconstitutionally
ineffective under Strickland v. Washington, 466 U.S. 668 (1984), because they did
not disregard Taylor’s instructions and present closing argument. Taylor asserts
that his trial counsel should have made a closing argument based on residual doubt
and Taylor’s good behavior during his incarceration. Taylor argues that:
… tactical decisions such as the best theory of defense or
how to argue the case to a jury are decisions that counsel
must make, regardless of the defendant’s wishes. See
Florida v. Nixon, 543 U.S. 175, 187 (2004). Despite
petitioner’s desire that counsel make no effort to spare
his life, counsel had a professional duty to deliver a
closing argument raising available arguments supported
by the evidence to try to convince the jury to reject the
death penalty. Based upon the facts… a powerful
argument could have been made to the jury that they
should spare petitioner’s life based on residual or
lingering doubt of guilt. Defense counsel could also have
advanced another, albeit less compelling argument, that
petitioner’s good behavior during his prior incarcerations
was a mitigating factor.
(Doc. 19 at 60)
Respondent argues that this claim was not raised in Taylor’s motion for
post-conviction relief and is therefore procedurally defaulted. (Doc. 29 at 65) In
the alternative, respondent argues that the post-conviction trial court properly
denied Taylor’ closely related claim in his amended motion for post-conviction
relief23 – that his waiver of his right to present penalty-phase evidence and
argument was not knowing or voluntary. (Id. at 65-67) In addition, Respondent
argues that this closely-related claim was also procedurally defaulted because
Taylor did not raise it on appeal from the denial of post-conviction relief. (Id. at
65) Finally, respondent argues that this claim should be denied on the merits
because “…‘certain decisions regarding the exercise or waiver of basic trial rights
are of such moment that they cannot be made for the defendant by a surrogate.’”
(Id. at 68) (quoting Nixon, 543 U.S. at 187)
In reply, Taylor argues that his procedural default is excused by Martinez v.
Ryan, 566 U.S. 1 (2012), because “[a] reasonably competent attorney would have
recognized and raised this obvious issue in petitioner’s amended [motion for postconviction review]. As noted in the petition, there is precedent from other courts
and the ABA guidelines that provided strong legal grounds to raise such a claim.”
(Doc. 46 at 55) Taylor further argues on the merits of the claim that:
I note that Taylor also made an additional closely related claim: that his trial
counsel was ineffective for failing to put forward evidence, rather than argument,
during the penalty phase. (See Doc. 29, Ex. Z at 66) Neither Taylor nor
respondent address this additional similar claim in their briefs.
Nixon clearly holds that strategic matters such as closing
argument are not among those fundamental rights that
requires the defendant’s personal and expressed
consent…. Both Nixon and the ABA guidelines, in a
capital case, require counsel to do everything in their role
as an advocate to attempt to convince the jury to spare
the defendant’s life.
(Id. at 56)
As a threshold issue, Martinez24 does not appear to excuse Taylor’s
procedural default. In support of his argument that reasonably competent postconviction review counsel would have raised this claim, Taylor cites to U.S. ex rel.
Emerson v. Gramley, 883 F.Supp. 225 (N.D. Ill. 1995), and to Kubat v. Thieret,
867 F.2d 351 (7th Cir. 1989). (Doc. 19 at 61) Taylor also argues that “[counsel’s]
waiver of closing argument in a capital case is also contrary to the ABA guidelines
regarding the performance of counsel in capital cases. See Commentary to ABA
Guideline 10.11. (‘Personal argument by counsel in support of a sentence less than
death is important.’)” (Id.).
Gramley was a capital case in which the defendant Dennis Emerson was
sentenced to death. Emerson expressly directed his counsel to not present any
In Martinez, the United States Supreme Court held that the ineffective assistance
of the initial post-conviction counsel to raise a claim of ineffective assistance of
trial counsel may establish cause to overcome a procedural default. 566 U.S. at 17.
A petitioner must show that his counsel in the initial post-conviction proceeding
was ineffective under the Strickland standard. Id. at 14. The under lying
ineffective assistance of trial counsel claim must be a substantial one. Id. A
substantial claim should be measured by the standards for a certificate of
evidence in mitigation or closing argument at the penalty phase of his trial. The
United States District Court for the Northern District of Illinois found that trial
counsel’s compliance with his client’s decision constituted ineffective assistance,
because counsel had made no attempt to investigate what mitigating evidence was
[Defendant presented] affidavits from his family
members stating that they were not contacted by
[counsel] about presenting possible mitigation evidence,
as well as his own affidavit indicating that [counsel]
failed to discuss with him any possible sources of
mitigation. In his deposition [counsel] either fails to
remember conducting any specific investigation or
admits that he prepared nothing before the conclusion of
the guilt-innocence phase of the trial…. [W]hen counsel
has failed to conduct a reasonable investigation into
possibly mitigating evidence, he cannot possibly advise
his client as to the propriety of a particular course of
action…. In this case, there is no indication that [defense
counsel] alerted [defendant] to the fact that unless he
presented some mitigating evidence, a death sentence
was certain. Moreover, [counsel] was incapable of
adequately advising [defendant] as to value of potentially
mitigating evidence, since he had conducted no
investigation…. Given that [defendant] faced an almost
certain sentence of death, counsel was remiss in not
presenting some evidence of mitigation on his behalf, and
his failure to do so constituted deficient performance.
Gramley, 883 F.Supp. at 242-244 (internal footnotes omitted).
However, the circumstances in Gramley and the underlying relationship
between Emerson and his trial counsel are factually distinct from the circumstances
and relationship between Taylor and his trial counsel in the present case. During
the guilt phase of the trial Emerson expressed to the judge his “displeasure with the
performance of his lawyer.” Id. at 230. Emerson “lamented that [his attorney] had
not previously discussed trial strategy with him and resisted calling any witnesses.”
Id. After the judge rebuffed his complaints, Emerson declared he would have
nothing to do with the rest of the proceedings and would sit in the back of the
courtroom for the remainder of the trial. Id. at 231. However, when his lawyer
stated that the defense was going to rest without calling any witnesses, Emerson
“demanded that certain witnesses be called in his defense.” Id. Emerson himself
asked questions of one witness. Id. Emerson’s counsel “failed to conduct any
investigation or preparation into possible mitigation evidence.” Id. at 242. He met
with his attorney only twice before trial and neither he nor his counsel had any
recollection about speaking with each other about the case. Id. at 235.
The present case is distinguishable from Gramley. There is nothing in the
record that indicates that Taylor had a bad relationship with his trial counsel. His
counsel vigorously defended him in pretrial proceedings and in the guilt phase of
the trial. Taylor’s counsel objected to the introduction of evidence and testimony,
advocated for the admission of evidence that was excluded, diligently crossexamined the State’s witnesses, and called and examined witnesses in Taylor’s
defense. At the penalty stage of the trial Taylor’s counsel objected to the
admission of evidence, made an opening statement, and raised objections to the
State’s examination of a witness. There are indicia in the record that Taylor’s trial
counsel discussed investigating mitigating evidence with him “months before
trial,” and refrained from gathering such evidence only because Taylor expressly
ordered them not to. (Doc. 29, Ex. AA at 92) Taylor’s argument in his amended
post-conviction motion appears to acknowledge that his trial team had begun
investigating mitigation evidence as a matter of course, and ceased to do so only
after receiving Taylor’s orders to that effect. (Id.) Taylor unequivocally informed
the trial court of his religious based decision directing his counsel not to put on
mitigating evidence or make a closing argument at the penalty phase of the trial.
Unlike the turbulent circumstances in Gramley, Taylor’s decision was not the
result of the ineffective preparation of his trial counsel, it was a knowing and
Taylor’s citation to Kubat on this claim is inapposite. The defendant in
Kubat had specifically asked his counsel to present mitigation evidence at the
penalty phase and named an “impressive array of character witnesses,” including
neighbors, co-workers, and a deputy sheriff, all of whom were willing to testify on
his behalf. Kubat, 867 F.2d at 366-367. Counsel disregarded defendant’s
directions, called no witnesses, and presented only a closing argument that:
… cannot, even charitably, be called a plea for mercy.
The argument was, as the district court said, “a rambling,
incoherent discourse… that may actually have
strengthened the jury’s resolve to impose a death
sentence.”… In less than three pages of trial transcript,
[defendant’s] counsel stumbled (or, perhaps, breezed)
through references to the Old Testament, vengeance, “an
eye for an eye,” the New Testament, forgiveness,
punishment, rehabilitation, deterrence, the boilermakers
(beer and whiskey) that [defendant] had consumed on the
day of the murder, a hopeless sounding admission that
counsel was “not going to convince” the jury, and then
ended with a bizarre statement which asked the jury to
“decide the way you feel, Robert Kubat or Lydia Hyde.”
As the district court said, “[i]t was utter lunacy for
defense counsel to invite such a comparison” between
[defendant] and the victim.
Id. at 368 (internal citations omitted).
Finally, nothing in the text or commentary of the ABA’s guidelines supports
the claim that defense counsel is obligated to investigate mitigation evidence over
their client’s express orders to the contrary. See American Bar Association
Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases, 31 Hofstra L. Rev. 913, 1055-1070 (2003); see also Supplementary
Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases,
36 Hofstra L. Rev. 677 (2008). The ABA guidelines presume that defense counsel
will enjoy the assistance, or at least the compliance, of their client in presenting
Even if Gramley suffices to excuse Taylor’s procedural default under
Martinez and that reasonably competent post-conviction counsel would have raised
this claim, Taylor’s claim fails on the merits. The United States Supreme Court
held in Nixon that trial counsel, having tried and failed to obtain express direction
from an unresponsive defendant, was not constitutionally ineffective for deciding
to admit his client’s guilt in the hope of sparing his life at sentencing. Nixon, 543
U.S. at 178. In so doing, the Supreme Court reiterated the distinction between
“‘every tactical decision’” left to counsel’s professional discretion and “certain
decisions regarding the exercise or waiver of basic trial rights [which] are of such
moment that they cannot be made for the defendant by a surrogate.” Id. at 187
(quoting Taylor v. Illinois, 484 U.S. 400, 417-418 (1988)). Examples of the latter
include “‘whether to plead guilty, waive a jury, testify in his or her own behalf, or
take an appeal.’” Id. (quoting Jones v. Barnes, 463 U.S. 745, 751 (1983)).
The United States Supreme Court revisited the distinction between trial
counsel’s ability to direct trial strategies and decisions that are basic trial rights of
the defendant in McCoy v. Louisiana, 2018 WL 2186174 (2018). The Court
distinguished Nixon and held that trial counsel’s decision to admit his client’s guilt
against his client’s express opposition, for the same purpose in Nixon of seeking to
spare his client’s life at sentencing, violated his client’s Sixth Amendment right to
counsel. The Supreme Court held in McCoy that:
Just as a defendant may steadfastly refuse to plead guilty
in the face of overwhelming evidence against her, or
reject the assistance of legal counsel despite the
defendant’s own inexperience and lack of professional
qualifications, so may she insist on maintaining her
innocence at the guilt phase of a capital trial. These are
not strategic choices about how best to achieve a client’s
objectives; they are choices about what the client’s
objectives in fact are.
McCoy, 2018 WL 2186174 at *6 (emphasis in original).
Taylor’s argues that his trial counsel was constitutionally ineffective for not
disregarding Taylor’s express directive forbidding a closing argument at the
penalty phase of his trial. This argument is without merit in light of Nixon and
McCoy. How to present argument in the fashion calculated to best persuade the
jury is a strategic decision subject to the professional discretion of learned counsel.
Whether to present argument at all, as opposed to simply holding the state to its
burden of proof, is one of the “basic trial rights” the Constitution reserves to the
defendant. Nixon, 543 U.S. at 187. The record reflects that Taylor was aware of
his attorneys’ objective of averting the imposition of the death penalty and that he
made a conscious and informed decision to value a different objective more highly,
adhering to his religious tenets. (Doc. 29, Ex. T at 5-6) Taylor continued to
prioritize his religious objective despite extensive warnings from the trial court as
to the likely consequences his decision would have for his chances of averting
execution. (Id. at 12) Taylor had the ultimate authority to determine whether to
waive his basic trial right of a closing argument at the penalty phase of his trial.
As a result, I will deny Taylor’s eighth ground for relief.
A certificate of appealability is warranted.
I have considered whether to issue a certificate of appealability in this matter
under 28 U.S.C. § 2253. To grant such a certificate, I must first find a substantial
showing of the denial of a federal constitutional right. See Tiedeman v. Benson,
122 F.3d 518, 522 (8th Cir. 1997). A substantial showing is “a showing that issues
are debatable among reasonable jurists, [that] a court could resolve the issues
differently, or [that] the issues deserve further proceedings.” Cox v. Norris, 133
F.3d 565, 569 (8th Cir. 1997) (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir.
Upon a final review of Taylor’s claims I conclude that Taylor’s counsel’s
decision to comply with Taylor’s directive to forego a closing argument at the
penalty stage of his trial may have violated Taylor’s substantial right to
constitutionally effective counsel at trial. Whether the decision to forego a closing
argument at the penalty stage of a capital murder trial is a tactical decision for
counsel or a basic trial right decision for the defendant is debatable among
reasonable jurists. This is a question of law that the United States Supreme Court
has not directly considered. Another court could resolve this issue differently and
the issue deserves further review.
IT IS HEREBY ORDERED that the petition of Leonard S. Taylor for a
writ of habeas corpus is DENIED.
IT IS FURTHER ORDERED that the Court will issue a certificate of
appealability in a separate document.
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 31st day of March, 2018.
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