Williamson v. Wallace

Filing 19

MEMORANDUM AND ORDER - For the reasons stated above, the petition of DMarcus Williamson for a writ of habeas corpus is denied. Because petitioner has made no substantial showing of the denial of a constitutional right, the court does not issue a certificate of appealability. 28 U.S.C. § 2253 (c) (2). An appropriate Judgment Order is issued herewith.. Signed by Magistrate Judge David D. Noce on 6/24/15. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
D’MARCUS WILLIAMSON ,

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Petitioner,
v.
IAN WALLACE,
Respondent.

No. 4:13 CV 2014 DDN

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

I. BACKGROUND
The state charged petitioner with robbery in the first degree and armed criminal action.
(Doc. 10, Ex. B at 15-16.) On July 7, 2010, a jury in the Circuit Court of the City of St. Louis
found petitioner guilty of robbery in the first degree, but not guilty of armed criminal action. (Id.
at 47-48.) On August 27, 2010, the circuit court sentenced petitioner, as a prior offender, to
twelve years imprisonment for first degree robbery. (Id. at 60; Ex. A at 262.)
Petitioner directly appealed his conviction and sentence to the Missouri Court of Appeals.
(Doc. 10, Ex. C.) His sole contention on appeal was that the trial court erred in not declaring a
mistrial after Det. Amy Funk testified that petitioner was “actually incarcerated for another
crime.” (Id. at 10.) The conviction and sentence were affirmed on direct appeal. (Id., Ex. E.)
Petitioner also filed a motion for post-conviction relief under Missouri Supreme Court
Rule 29.15, alleging that his trial counsel rendered constitutionally ineffective assistance for
failing to request the trial court to submit the lesser-included offense of robbery in the second
degree to the jury. (Id., Ex. F at 34-42.)

The circuit court denied the motion without an

evidentiary hearing. (Id. at 60-63.) The Missouri Court of Appeals affirmed the denial of postconviction relief. (Id., Ex. I)
On October 9, 2013, petitioner filed the instant petition for a writ of habeas corpus under
28 U.S.C. § 2254.

Trial Evidence
The facts of the case, indicated by the trial evidence most favorable to the verdict, are as
follows. On August 21, 2009, around 2:00 a.m., cousins Marcus Young and Michael Moore
were in Young’s car, a Chevy Monte Carlo, parked on a street. A Dodge Charger pulled up next
to the Monte Carlo on the left. The passenger of that car rolled down his window and asked
Young and Moore, “Is Dante in the vehicle with you guys?” Young responded, “No.” Young
then got out of the Monte Carlo and was walking across the street, heading for his home, when
an occupant of the Dodge Charger, later identified as petitioner D’Marcus Williamson, got out
and held a gun to Young’s face. (Ex. A at 135-36.) Petitioner then demanded Young’s keys;
Young responded by throwing his car keys to petitioner. (Id. at 150-52.) While the gun was still
pointed at Young, petitioner told Young not to look at him, and also demanded that Moore “keep
walking.” (Id.) Once petitioner received Young’s car keys he made a noise and two other
individuals came from around the corner. One of these two men was carrying what Young
believed to be a gun. Petitioner threw Young’s keys to one of these individuals and the three of
them drove off. (Id. at 154.) Young called the police immediately after these individuals left.
(Id.)
Young testified at trial that the assailant looked “young” and believed him to be around
seventeen.

(Id. at 154.) Young also testified that the assailant was “[a] little bit shorter than

me.” Young stated he was six feet, two inches tall. (Id. at 151.)
Later that day, police found a car matching the description of the Dodge Charger and
after a brief chase took the individual driving the car into custody. (Id. at 174.) Police took
Young to the location of the arrest and asked Young to identify a gun that was on the ground
there. Young informed the police that this gun was not the one which was pointed at his face,
but that it looked like the second gun, the gun he observed one of petitioner’s accomplices
carrying. (Id. at 155.)

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Police then put together a physical line-up of four individuals which included the
individual they apprehended from the Dodge Charger.

Young was unable to identify an

individual from the robbery from this lineup. (Id. at 175-76.) The detective recalled Young
stating that he got a good look at the primary assailant but that Young did not get a good look at
the other individuals involved. (Id. at 177.)
Later that same day, the police found Young’s car and were able to lift fingerprints from
it. (Id. at 184.) A fingerprint examiner concluded that one of these fingerprint lifts matched
petitioner’s left thumb. (Id. at 193.)
On September 17, 2009, Young identified petitioner in a photo lineup as the individual
who held a gun to him and took his keys on August 21, 2009. (Id. at 201.) On September 29,
2009, the police made up a physical lineup, during which Young identified petitioner as the
assailant again. (Id. at 158-59, 206.)
During jury voir dire petitioner’s attorney asked the venirepersons whether petitioner’s
prior guilty plea to carrying a concealed weapon would have any effect on determining
petitioner’s guilt under the present charge. The venirepersons all answered in the negative. (Id.
at 88.)
During the trial, petitioner’s attorney cross-examined Young regarding the gun used
during the robbery. (Id. at 162.) Young stated that the gun that he was shown did not look like
the gun that was pointed at him, but could perhaps have been the gun one of petitioner’s
accomplices carried. (Id.) Petitioner’s attorney read Young his previous statement in which he
stated that he was sure that the gun the police asked him to identify was not either of the two
guns involved in the robbery. (Id. at 165.) Young explained his statements and testified he told
the police officer, “Yes, that looks like the gun. I can’t say it’s the exact same gun though.” (Id.
at 166-67.) There was never any evidence presented to the jury that the gun used by petitioner
was found or identified by Young.
Later during the trial Det. Amy Funk testified regarding the fingerprint identification.
(Id. at 198.) Prior to her testimony two police witnesses testified about finding a fingerprint on
Young’s Chevy Monte Carlo and matching that print to petitioner’s. (Id. at 159, 184, 193-94.)
She then testified as follows:
[MS. GILLIAM, THE PROSECUTOR]:
Okay. And so after they had let you
know that D’Marcus Williamson’s fingerprint was on the car, what did you do?

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A:
At that point, I conducted a computer inquiry of Mr. Williamson. I
noticed that his physical appearance had some strong similarities to the victim’s
original statement on his description from the original night the incident had
occurred. Based on that and the fingerprint identification, we put him in a photo
spread to be shown to the victim. He was actually incarcerated at the time on
another crime –
[DEFENSE COUNSEL]:
THE COURT:

Objection, your Honor. May we approach?

Please approach.
***

THE COURT:

Ms. Gilliam.

[DEFENSE COUNSEL]:
unfairly prejudicial.

I would ask for a mistrial at this time. I think it’s

MS. GILLIAM: I’m asking the jury can be instructed to disregard it, and I mean it
doesn’t say what. It could have been a traffic ordinance. It could have been
anything. She didn’t say what it was. She just said he was incarcerated. I think if
the jury is instructed to disregard it, it would be curative.
THE COURT:
I’m not sure if it’s curative or not. I will hold my opinion.
I will ask the jury to disregard it and I’ll still consider it.
MS. GILLIAM:

Okay.

THE COURT:

Okay.

(The proceedings returned to open court.)
THE COURT:

The jury will disregard the last remark. All right.

[MS. GILLIAM]:
do?

Okay. So after you looked at the description, what did you

A:

We put him in a photo spread at that point.

(Id. at 199-200.)

Later, the court denied defense counsel’s request for a mistrial, stating, “In

voir dire, you indicated that [petitioner] had a previous offense. So it is no secret to the jury that
he has a previous offense.” (Id. at 203.)
Later during trial, petitioner testified. (Id. at 213.) He admitted his prior offense of
carrying a concealed weapon, for which he received three years probation.

(Id. at 214.)

Petitioner also testified to the jury that, on the evening of the incident, he was down on the
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riverfront trying to purchase speakers from an individual driving a Chevy Monte Carlo. There he
discussed the purchase, but he did not have all of the $200 purchase price. The sale did not go
through, and he denied being involved in any robbery that evening. (Id. at 215-17.)
The jury convicted petitioner of robbery in the first degree but found him not guilty of
armed criminal action. (Doc. 10, Ex. B at 47-48.)

II. PETITIONER’S GROUNDS FOR FEDERAL HABEAS RELIEF
Petitioner alleges two grounds:
(1) The trial court erred in denying petitioner’s request for a mistrial after detective Amy
Funk testified that petitioner was incarcerated for another crime at the time she ran a
computer inquiry of him.
(2) Trial counsel rendered constitutionally ineffective assistance by failing to request that
the jury be instructed on the lesser-included offense of robbery in the second degree.
(Doc. 1 at 6-7.)
III. STANDARD OF REVIEW
Congress requires that habeas relief may not be granted by a federal court on a claim that
has been decided on the merits by a state court unless that adjudication:
(1)
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254 (d) (1)-(2).
A state court’s decision is contrary to clearly established federal law, if it “arrives at a
conclusion opposite to that reached by [the] Court on a question of law or if the state court
decides a case differently than [the] Court has on a set of materially indistinguishable facts.”
Thaler v. Haynes, 559 U.S. 43, 47 (2010) (per curiam) (citation omitted). This standard is
difficult to meet because habeas corpus “is a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error correction through appeal.”
Harrington v. Richter, 562 U.S. 86, 102 (2011) (citation omitted). A state court’s decision
involves an “unreasonable application” of clearly established federal law if “the state court

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identifies the correct governing legal principle from [the] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case.” Thaler, 559 U.S. at 47.
A state court’s factual findings are presumed to be correct. 28 U.S.C. § 2254(e) (1);
Wood v. Allen, 558 U.S. 290, 293 (2010). Review under § 2254(d) (1) is limited to the record
before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 131 S.Ct.
1388, 1398 (2011). Clear and convincing evidence that factual findings lack evidentiary support
is required to grant habeas relief. 28 U. S.C. § 2254(e) (1); Wood, 558 U.S. at 293.

IV. DISCUSSION
A. Ground 1
In Ground 1, petitioner argues that the trial court erred in denying his motion for a
mistrial once the State’s investigator, Det. Funk, testified that petitioner was incarcerated for an
unrelated manner after she matched petitioner’s fingerprints to the fingerprints found on Young’s
vehicle.
“Only where admission of evidence is so prejudicial as to constitute a denial of due
process will federal courts intervene in state proceedings on petition for writ of habeas corpus.
Introduction at trial of evidence of prior crimes is a matter of state evidentiary law and thus will
ordinarily not be subject to review in federal habeas corpus proceedings.” Cunha v. Brewer, 511
F.2d 894, 898 (8th Cir. 1975) (quoting Parker v. Swenson, 332 F. Supp. 1225, 1229 (E.D. Mo.
1971)); Keyes v. Bowersox, 230 F. Supp.2d 971, 975 (E.D. Mo. 2002).

No due process

violation exists regarding admission of prior crimes against a defendant unless the testimony was
“so conspicuously prejudicial or of such magnitude that it fatally infected the trial and deprived
[defendant] of fundamental fairness.” Hobbs v. Lockhart, 791 F.2d 125, 128 (8th Cir.1986);
Parker v. Bowersox, 94 F.3d 458, 460 (8th Cir. 1996). In deciding the magnitude of prejudice, a
court must review “the totality of the facts in the case and the fairness of the whole trial.”
McDaniel v. Lockhart, 961 F.2d 1358, 1360 (8th Cir. 1992). To this end it is important to place
the prejudicial statement in context. Greer v. Miller, 483 U.S. 756, 765-66 (1987). Factors that
help determine if the prejudice of a comment is so great as to violate due process include:
whether the prosecutor deliberately solicited the prejudicial comment, whether that the comment
was isolated and brief, and whether the trial judge immediately struck the comment and

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instructed the jury to disregard the prejudicial statement. Batten v. Scurr, 649 F.2d 564, 569 (8th
Cir. 1981).
The Missouri Court of Appeals considered petitioner’s federal habeas Ground 1 on direct
appeal. (Doc. 10, Ex. E at 2) (“[Petitioner] alleges that because Detective’s comments were
inadmissible and prejudicial, he was deprived of his right to a fair trial.”) The appellate court
then considered the circumstances before the trial court, including the record made during the
voir dire examination of the potential jurors:
During voir dire, [petitioner’s] counsel informed the venirepanel that the
jury would hear [petitioner] testify and he would testify regarding his criminal
history. [Petitioner’s] counsel polled the venirepanel to discover any potential
prejudices once they learned [petitioner] had a criminal history. There was no one
on the venirepanel who believed [petitioner’s] history would impact the way each
venireperson would determine [petitioner’s] guilt or innocence in this case.
(Id.) The Court of Appeals also considered what actually happened at trial:
During [petitioner’s] trial, Detective testified on direct examination
regarding the fingerprint examination. After she stated the fingerprints collected
were a match to [petitioner], she was asked, “And so after they had let you know
that [petitioner’s] fingerprint was on the car, what did you do?” Detective
narrated her actions . . . .
(Id. at 3.) The state appellate court then reasoned:
In determining the prejudicial effect of an unsolicited reference to other
crimes, courts look to the following factors: (1) whether the statement was
voluntary and unresponsive; (2) whether the statement was singular and isolated,
or emphasized by the prosecution; (3) whether the statement was vague and
indefinite, or made specific references to a crime committed by the accused; (4)
whether the court promptly sustained defense counsel’s objection to the statement
and admonished the jury to disregard the statement; and (5) whether the statement
played a decisive role in the determination of guilt in view of other evidence
presented and the strength of the prosecution’s case. . . . Detective’s statement
was voluntary, singular, and made during a narration of what she did after the
identification of Defendant’s fingerprint. Her remark did not reference a specific
crime committed by Defendant. The trial court promptly sustained the objection
and instructed the jury to disregard her comment. This Court presumes the jury
followed the trial court’s instructions when directed to disregard improper
answers. . . . Additionally, the jury was already privy to the information that
Defendant had a prior conviction, and Defendant testified.
(Id.)(internal citations omitted.)

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The decision of the Missouri Court of Appeals was entirely supported by the factual
record and involved a reasonable application of federal law. There has been no showing of
“conspicuous prejudice” on the part of the petitioner. As the Missouri appellate court stated, the
statement in question was a response to a question of how Det. Funk was able to identify
petitioner. Her statement was immediately objected to, and the court instructed the jury to
disregard Det. Funk’s testimony on that matter. “We normally presume that a jury will follow an
instruction to disregard inadmissible evidence inadvertently presented to it.” Greer v. Miller,
483 U.S. 756, 767 (1987). Further, the prosecutor’s question: after you knew it was petitioner’s
fingerprint, “what did you do?” does not suggest that Funk’s comment regarding petitioner’s
incarceration was solicited. Also, the comment was brief and isolated, detective Funk did not
elaborate on petitioner’s imprisonment once she was immediately objected to. Further reason to
conclude that petitioner did not suffer “conspicuous prejudice” comes from the context of the
statement. There was no suggestion of why petitioner was imprisoned. Petitioner had already
told the jury in voir dire that he pled guilty to carrying a concealed weapon. All venirepersons
responded that this would not affect their judgment of the present case.
Finally, because petitioner planned to testify on his own behalf, his prior criminal
convictions would have been admissible to impeach him. State v. Chambers, 891 S.W.2d 93,
112 (Mo. 1994).
For the reasons stated above, Ground 1 is without merit.

B. Ground 2
In Ground 2 petitioner argues that his trial counsel’s failure to request that the jury be
instructed on the lesser-included offense of robbery in the second degree violated his
constitutional right to not be deprived of effective assistance of counsel. Petitioner alleges that,
if the jury had been so instructed, there was a reasonable probability that he would only have
been found guilty of the lesser offense.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court determined that the
right to effective assistance of counsel arises from the Fourteenth and Sixth Amendments. Under
Strickland, a petitioner is entitled to federal habeas corpus relief upon a showing that “counsel’s
conduct so undermined the proper function of the adversarial process that the trial cannot be
relied on as having produced a just result.” Id. at 686.
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Petitioner must prove two elements to prevail on a claim of ineffective assistance of
counsel. First, petitioner must demonstrate that counsel’s performance fell below an objective
standard of reasonableness. Id. at 687-88. There is a strong presumption that counsel’s actions
were “sound trial strategy.” Id. at 689.

Counsel’s strategic choices made after thorough

investigation are virtually unchallengeable, and decisions following reasonable, but less
thorough, investigation are to be upheld to the extent that they are supported by reasonable
judgment. Id. at 690-91. Second, petitioner must demonstrate actual prejudice by counsel’s
deficient performance. Id. at 687. To show prejudice, a petitioner must show that but for
counsel’s errors there is a “reasonable probability” that the outcome would have been different.
In deciding whether counsel’s errors resulted in the required prejudice, a court presumes that the
judge or jury acted according to the law. Id. “Moreover, a verdict or conclusion only weakly
supported by the record is more likely to have been affected by errors than one with
overwhelming record support.” Id. at 696.
Petitioner claims his counsel was ineffective for failing to request an instruction on the
lesser-included offense of robbery in the first degree. The necessary premises of this claim are
that there was a reasonable probability that: (1) the judge would have granted the requested
instructions, and (2) the jury would have convicted petitioner under the lesser-included offense.
On this ground the Missouri Court of Appeals decided that the circuit court correctly
ruled against petitioner. After surveying the law and facts of the case, the appellate court stated:
[Defense counsel] cannot be found ineffective for failing to request an instruction
for second-degree robbery where his theory was actual innocence.
Moreover, a defendant is not entitled to an instruction on a lesser included
offense unless the instruction is supported by the evidence and inferences flowing
therefrom. Two eyewitnesses – the owner of the stolen vehicle and his friend –
testified that a gun was used to steal the vehicle. [Petitioner] simply claimed that
he wasn’t the culprit. Nothing in the record suggests a version of events in which
the offense was committed without a weapon. In short, there is no evidentiary
basis for the lesser instruction. As such, counsel was not ineffective for failing to
request it, and there is no reasonable probability that its absence affected the
outcome of the trial. In other words, [petitioner] cannot establish prejudice.
(Id., Ex. I at 3-4.)
The Missouri Court of Appeals applied federal law to a factual record on the relevant
issues about which there was no substantial dispute.
Accordingly, Ground 2 is without merit.
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V. CONCLUSION
For the reasons stated above, the petition of D’Marcus Williamson for a writ of habeas
corpus is denied.

Because petitioner has made no substantial showing of the denial of a

constitutional right, the court does not issue a certificate of appealability. 28 U.S.C. § 2253 (c)
(2).
An appropriate Judgment Order is issued herewith.

/S/ David D. Noce
UNITED STATES MAGISTRATE JUDGE

Signed on June 24, 2015.

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