Appendix — Roper v. Manning
Supreme Court brief2003
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In the
SUPREME COURT OF THE UNITED STATES
DONALD ROPER,
Superintendent , Potosi Correctional Center,
Petitioner,
Vv.
STEVEN L. MANNING,
Respondent.
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Eighth Circuit
APPENDIX
JEREMIAH W. (JAY) NIXON
Attorney General of Missouri
JAMES R. LAYTON
State Solicitor
STEPHEN D. HAWKE
Counsel of Record
Assistant Attorney General
P.O. Box 899
Jefferson City, MO 65102
Phone: (573) 751-3321
Fax: (573) 751-3825
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TABLE OF CONTENTS
November 8, 2002 Opinion by the United States Court of
Appeals for the Eighth Circuit ..................... A-2
April 17, 2001 Order by the United States District Court for the
Western District of Missouri ..................... A-14
June 18, 2001 Order by the United States District Court for the
Western District of Missouri ....................-. A-54
August 23, 1994 Memorandum in Support of Order by the
Missouri Court of Appeals, Western District ........ A-55
December 31, 2002 Order by the United States Court of
Appeals for the Eighth Circuit .................... A-75
August 11, 1993 Findings of Fact and Conclusions of Law and
Order by the Circuit Court of Clay County, Missouri .. A-76
Docket Sheets in State of Missouri v. Steven L. Manning,
CR190-1699FX in Clay County Circuit Court,
EE LOE C Tee Sug a, ee AR A-91
Docket Sheets in State of Missouri v. Steven L. Manning,
CR191-550F in Clay County Circuit Court, Missouri .. A-95
Complaint in State of Missouri v. Steven L. Manning, CR190-
1699FX in Clay County Circuit Court, Missouri... . . A-104
A-2
UNITED STATES COURT OF APPEALS FOR THE
EIGHTH CIRCUIT
No. 01-3246
STEVEN L. MANNING, _ )
)
Appellant, )
)Appeal from the United States
v. District Court for the Western
) District of Missouri.
MICHAEL BOWERSOX, |)
Superintendent; Jeremiah )
(Jay) Nixon, )
Attorney General, Stateof )
Missouri, )
)
Appellees. _)
Submitted: September 9, 2002
: Filed: November 8, 2002
Before WOLLMAN, HEANEY and BYE, Circuit Judges.
HEANEY, Circuit Judge.
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Steven Manning appeals the district court's' denial of his
petition for a writ of habeas corpus. We affirm in part and -
reverse in part.
\The Honorable Ortrie D. Smith, United States District
Court for the Western District of Missouri.
nde ee hb PS cA NONE LEAS Ce Ral n Poe Re dae
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BACKGROUND
In February of 1984, Charles Ford and Mark Harris were
kidnapped at gunpoint and held for ransom. Once released,
Ford and Harris did not immediately report the crime because
Ford, an admitted drug dealer, was concerned that law
enforcement might focus on his own criminal activity. When
they did report the abduction several months later, they stated
they could not identify their captors because they were
blindfolded during the kidnapping. With no information
pointed to suspects, the case was not pursued.
In 1989, the investigation was reopened based on recent
statements from a person alleging to be the ringleader, Anthony
Mammolito. Mammolito implicated Manning, and Manning
was formally charged in Clay County, Missouri Circuit Court
on July 20, 1990.
Manning was arrested on the Missouri charges in
Chicago on July 26, 1990, and held in Cook County Jail
awaiting extradition to Missouri. Because Manning was also a
suspect in an Illinois murder, the FBI planted a government
informant in his cell to try to collect evidence about the Illinois
crimes. The informant's agreement specified that he was not to
elicit any information about Manning's pending Missouri
charges. However, the informant did talk about the Missouri
charges, and agreed to help Manning fabricate an alibi defense
using the informant's girlfriend, Sylvia Herrera. The FBI then
met with Herrera to go over what information she should
attempt to elicit from Manning. Pursuant to her agreement with
the FBI, Herrera began to record her conversations with
Manning.
Manning was tried in October of 1991, but the jury
locked, resulting in a mistrial. He was tried again in January of
1992. At this trial, Herrera testified extensively about her work
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as a government informant and the plan to fabricate an alibi
defense.
Also testifying at Manning's trial was Carolyn
Heldebrand, the sister of one of the kidnapping victims. In
1990, as part of the investigation in this case, she was shown
two photo line-ups. Manning was included in each line-up, and
he was the only person whose picture appeared in both photo
spreads. At trial, she testified that she was the one who paid the
ransom, and she saw the perpetrator-Manning-during the
ransom drop.”
On January 24, 1992, Manning was convicted of two
counts of kidnapping and two counts of armed criminal action.
Based on Manning's status as a prior offender, the court
imposed consecutive life sentences on each of the kidnapping
convictions and consecutive fifty-year sentences on each of the
armed criminal action convictions. Manning exhausted his
state court remedies through direct appeals and post-conviction
proceedings. He then filed a petition for a writ of habeas
corpus. The district court denied relief, but granted a certificate
of appealability on essentially four issues: 1) whether the use of
government informants after Manning was charged violated his
constitutional right to counsel; 2) whether the government's
pretrial identification tactics were impermissibly suggestive; 3)
whether the substantial delay between the commission of the
crime and the trial deprived Manning of due process; and 4)
whether the government knowingly elicited perjured testimony
at Manning's trial. Finding that Manning's right to counsel was
violated by the government's use of informants, we reverse the
? Although Heldebrand had previously picked Manning
out of the photo line-ups, she was not able to identify him as the
kidnapper at either the pretrial deposition in this matter or the
first trial.
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district court on that ground, and affirm the district court
regarding the identification and pretrial delay issues.”
DISCUSSION
I. STANDARD OF REVIEW
In habeas corpus cases, we are directed to issue a writ of
habeas corpus where the lower court decision was, inter alia,
"contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States." 28 U.S.C. §2254(d)(1) (2002).
II. THE GOVERNMENT'S USE OF INFORMANTS
Manning claims that the government's use of Sylvia
Herrera as an informant violated his constitutional right to
counsel. Criminal defendants are guaranteed the right to
counsel at all critical stages of criminal proceedings. Massiah
v. United States, 377 U.S. 201, 205 (1964). "[T]he prosecutor
and police have an affirmative obligation not to act in a manner
that circumvents and thereby dilutes the protection afforded by
3Our decision on Manning's right to counsel claim is
dispositive, but we still address the precharging delay and
pretrial identification claims because these issues are likely to
come up again if the government pursues a new trial. See
United States v. Cannon, 88 F.3d 1495, 1503 (8th Cir. 1996)
(deciding non-dispositive issues that may arise at second trial
for sake of judicial economy). As to Manning's claim that the
government used perjured testimony at trial, the district court
did not hold an evidentiary hearing on the matter, leaving our
record incomplete. We believe the trial court, perhaps
benefitted by an evidentiary hearing, will be in a better position
to consider this claim than our court.
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the right to counsel." Maine v. Moulton, 474 U.S. 159, 171
(1985). Consequently, the government may not, either directly
or through its agents, deliberately elicit incriminating
information from suspects without counsel present. Id. at 173-
74.
It is undisputed that Herrera was acting as a government
agent here, pursuant to her agreement with the FBI. However,
the government suggests that no right to counsel attached
because Manning was only charged by complaint, rather than
indictment, when he spoke with Herrera. Our cases make no
such distinction. See Chewning v. Rogerson, 29 F.3d 418, 420
(8th Cir. 1994) (holding filing of charges is a critical stage for
sixth amendment purposes); Smith v. Lockhart, 923 F.2d 1314,
1318 (8th Cir. 1991) (listing criminal stages at which right to
counsel attaches, including filing of complaint). The right to
counsel attaches to interrogations conducted after the initiation
of adversarial criminal proceedings against the defendant; it is
of no import whether the proceedings were initiated by
complaint or indictment. Moulton, 474 U.S. 159, 170 (1985);
see also Gilmore v. Armontrout, 861 F.2d 1061, 1070 (8th Cir.
1988) (recognizing sixth amendment applies to "interrogation
activities conducted ‘at or after the initiation of adversary
criminal proceedings - whether by way of formal charge,
preliminary hearing, indictment, information or arraignment'")
(quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)). The right
to counsel attaches not only to direct confrontations by known
government officers, but also "indirect and surreptitious
interrogations" by covert government agerits and informants.
United States v. Henry, 447 U.S. 264, 272-73 (1980) (quoting
Massiah, 377 U.S. at 206).
The district court recognized that the government is not
involved in interrogation where a government agent merely acts
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as a listening post.‘ Kuhlmann v. Wilson, 477 U.S. 436, 458-59
(1986). However, that is not the case here. Rather, similar to
Moulton, the ,yovernment here deliberately created a
circumstance ripe for its agents to elicit incriminating
statements from Manning.
In Moulton, one codefendant agreed to work as a
government informant against the other codefendant. The
informant wore a recording device in a meeting with the
defendant. The police claimed that the recording device was
worn not to elicit incriminating information, but instead for the
informant’s own safety. The Supreme Court found this
argument unpersuasive: “knowing exploitation by the State of
an opportunity to confront the accused without counsel being
present is as much a breach of the State’s obligation ... as is
the intentional creation of such an opportunity.” Moulton, 474
U.S. at 176.
In Manning’s case, the government employed two
informants to elicit incriminating information from Manning
after he was charged. First, the government planted an
informant in Manning’s cell. Although the FBI told the
informant to limit conversation to the Illinois investigation,
rather than the charged Missouri crimes, he did not follow suit.
The FBI sanctioned this activity through its continued use of the
informant, and eventually encouraged him to get more
information on the Missouri crimes. The informant then
involved his girlfriend, Sylvia Herrera, by suggesting that
4We note that the listening post in Kuhlmann was the
defendant's jailhouse cellmate. Kuhlmann, 477 U.S. 439-40.
While this fact is not dispositive, a fellow inmate certainly has
a greater opportunity to simply "keep his ears open," id. at 439,
than does an outsider who often must affirmatively initiate the
contact with the jailed defendant.
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Manning use her to create an alibi. Herrera then entered into an
agreement with the FBI herself, whereby she began recording
her conversations with Manning. These conversations took
place by telephone and in person. Because Manning was in jail,
Herrera initiated the personal visits by traveling to Cook County
Jail. By using Herrera and her boyfriend as informants, the
government exploited its opportunity to interrogate Manning in
the absence of counsel. Any statements from these informants
related to Manning’s charged crimes should not have been
admitted at trial.
The government contends that even if it was error to
admit Herrera’s statements at trial, Manning did not properly
preserve this claim. The record indicates that Manning’s trial
counsel attempted to exclude Herrera’s testimony by way of a
motion in limine, but failed to renew the objection when
Herrera’s testimony was admitted at trial.
A motion in limine standing alone does not normally
preserve an issue for appellate review. United States v. Lee,
274 F.3d 485, 493 (8th Cir. 2001). However, when an issue has
been defaulted by trial counsel, the defendant may overcome
this procedural bar by showing cause for the default and
resulting prejudice. Coleman v. Thompson, 501 U.S. 722, 750
(1991). Cause, in this respect, can include a showing of
ineffective assistance of counsel. Id. at 753-54. Accordingly,
we apply the familiar test of Strickland v. Washington, 466 U.S.
668 (1984), in order to determine if the performance of
Manning’s trial attorney was inadequate, and whether Manning
was prejudiced by counsel’s shortcomings.
Here, there can be no doubt that the performance of
Manning’s counsel was deficient. Counsel attempted to attack
the admission of Herrera’s testimony only through a motion in
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limine.” The lack of a contemporaneous objection at trial
allowed the government to proffer Herrera’s testimony
unfettered, despite being constitutionally inadmissible.
The record in this case also establishes that Manning
was prejudiced by his trial attorney’s performance. As a result
of counsel’s failure to object to Herrera’s testimony, the
government adduced evidence that Manning had attempted to
create a false alibi defense. The prosecutor recognized the
importance of this point in his closing, where he emphasized
“[iJnnocent people don’t need to fabricate alibis.” (Trial Tr. at
657).
Manning has established cause for his procedural default
because his trial counsel was ineffective. As for resulting
prejudice, as discussed above, counsel here allowed the jury to
hear damaging, inadmissible testimony from Herrera that
Manning wanted to fabricate an alibi. Because there is a
substantial likelihood that absent this testimony the trial result
would have been different, Manning has shown prejudice
resulting from the procedural default.
The government’s use of informants here violated
Manning’s constitutional right to counsel. As a result,
Herrera’s trial testimony should have been suppressed.
Manning is not procedurally barred from raising this claim
because he has shown sufficient cause for the default and
‘Manning now asserts that part of trial counsel’s
deficiency rests in the fact that he filed a motion in limine,
where the more appropriate procedure would have been to file
a suppression motion. Because we find that trial counsel was
ineffective for not objecting to Herrera’s testimony at trial, we
need not address whether trial counsel’s choice of pretrial
motion was constitutionally deficient.
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resulting prejudice. Accordingly, the district court erred in not
granting Manning relief on this ground.
Ill. THE GOVERNMENT’S PRETRIAL IDENTIFICATION
TACTICS
Manning argues that Carolyn Heldebrand’s in-court
identification was the product of an unduly suggestive pretrial
identification procedure. In order to determine if identification
testimony is admissible, the trial court must first determine if
the pretrial identification technique was impermissibly
suggestive. Manson v. Brathwaite, 432 U.S. 98, 110 (1977).
“If so, then the court must decide whether, under the totality of
the circumstances, the suggestive confrontation created a
substantial likelihood of irreparable misidentification.” Griffin
v. Delo, 33 F.3d 895, 908 (8th Cir. 1994).
In 1990, Heldebrand was shown a photo spread of six
people, one of whom was Manning. She pointed to Manning as
looking similar to the person who picked up the ransom money
from her, but said the person she saw had lighter hair. She was
then shown four individual pictures of people, including one of
Manning. In this picture, Manning had lighter hair. Manning
claims the government’s method here was unduly suggestive
because his picture was the only one common to both photo
spreads.
Although Manning may be correct on this point, the
photo spread nonetheless did not create “a substantial likelihood
of irreparable misidentification.” Id. In fact, Heldebrand was
unable to identify Manning at her deposition, nor was she able
to identify him at the first trial. It was not until the second trial
that she identified Manning as the assailant. As such, Manning
can hardly argue that the suggestive photo line-up forever
etched his image as the assailant in Heldebrand’s mind.
Heldebrand’s in-court identification at the second trial was the
| |
A-12
more likely the product of her seeing Manning as the defendant
time and again throughout these extended criminal proceedings.
Manning is not entitled to relief on this ground.
IV. THE DELAY BETWEEN THE CRIME AND FORMAL
CHARGES
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Manning next claims that the delay between the time of
the crime and the initiation of criminal proceedings against him
was so long that he was deprived of due process. To prevail on
a claim that delay in charging violated his due process, Manning
must show that his defense has been substantially prejudiced by
an unreasonable delay. Bennett v. Lockhart, 39 F.3d 848, 851
(8th Cir. 1994). To succeed on this claim, Manning must
establish “actual prejudice,” by identifying with specificity the
evidence lost during the delay. Id. If Manning can show actual
prejudice from the delay, the burden shifts to the state to show
that the delay was not unreasonable. Id. A delay is not
unreasonable if it is the result of a legitimate purpose, such as
investigation. Id.
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Manning was prejudiced by the delay. In the six and a
half year delay between the crime and the filing of charges,
three potential witnesses died. Two of these witnesses were
also suspects in the kidnapping, while the third was a
government informant. Certainly, Manning would have been
better prepared had these witnesses been available for
questioning. Most notably, Manning would have been apprised
of the evidence against him, as well as the deficiencies in the
state’s witnesses. The presentation of Manning’s case was
hindered by not having these witnesses available.
Nonetheless, Manning is not entitled to relief on this
claim. The delay between the crime and the charges was based
on investigation. Following the crime, neither victim talked for
several months. When they did, they were not able to identify
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any assailants because both victims were blindfolded
throughout the ordeal. There were no further breaks in the case
until Mammolito gave a statement in 1989. Following
Mammolito’s statement, investigation continued, and charge
were ultimately brought in July of 1990. Because delay based
on further investigation is reasonable, no due process violation
occurred.
CONCLUSION
Manning’s due process rights were not violated by the
lengthy precharging delay, nor by the government’s pretrial
identification procedures. However, the government’s use of
informants violated Manning’s constitutional right to counsel
and consequently, Sylvia Herrera’s testimony should have been
excluded at trial. Accordingly, we reverse the district court as
to the right to counsel claim and remand with instructions to
conditionally grant the writ, subject to the right of Missouri to
retry Manning.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
STEVEN L. MANNING, )
Petitioner, :
V: Case No. 97-0336-CV-W-3
MICHAEL BOWERSOX cn
JEREMIAH (JAY) NIXON, )
)
Respondents. )
ORDER DENYING PETITIONER’S APPLICATION
FOR WRIT OF HABEAS CORPUS
Pending is Petitioner’s application for a Writ of Habeas
Corpus, which consists of his original pro se Petition and his
First and Second Amended Petitions. For the following
reasons, the application for a Writ is denied.
I. BACKGROUND’
'Petitioner was convicted of first degree murder and
armed robbery in Illinois and sentenced to death. The
convictions in this case were aggravating factors that lent
support to the Illinois death sentence. This fact persuaded the
undersigned to permit rather extensive discovery in this case
because, although this was not a capital case, it had definite
implications in the Illinois capital case. Subsequently, the
Illinois Supreme Court vacated the conviction due to the
admission of inadmissible evidence. People v. Manning, 695
N.E.2d 423 (Ill. 1998). After discovery in this case closed,
A-15
Petitioner’s first trial ended in a mistrial in October
1991. Petitioner was convicted in January 1992 on two counts
of kidnaping and two counts of armed criminal action. He was
sentenced to two life terms for the kidnaping counts and two
fifty year terms for the armed criminal action counts, with all
sentences to run consecutively.
The crimes in question occurred in early 1984, and were
prompted by Anthony Mammolito’s discovery that Charles
Ford was a drug dealer and had access to a lot of money. After
viewing the evidence in the light most favorable to the guilty
verdicts in the second trial, the Missouri Court of Appeals
summarized the circumstances surrounding the crimes as
follows:
Mammolito went to Chicago to recruit
individuals to help him kidnap Ford.
Mammolito went to the house of a former
fellow prison inmate, Thomas McKillip, and
asked [for] McKillip’s help in kidnapping Ford.
McKillip made a telephone call. About 15 to 20
minutes later, Manning showed up at McKillip’s
house. After discussing the kidnapping plans,
Manning recruited Gary Engel to help with the
kidnapping. The next night, Manning, Engel,
McKillip and Mammolito met at Engel’s house
and discussed the kidnapping. Mammolito then
returned to Kansas City.
A week or two later, McKillip drove to
Kansas City and met with Mammolito. He told
Mammolito that Manning and Engel would be
flying from Chicago that night. McKillip
Illinois officials decided not to re-prosecute Petitioner.
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showed Mammolito the paraphernalia that he
had brought with him, including police radios
for cars, hand-held radios, an assortment of
badges from law enforcement agencies, search
warrants, a red light, handcuffs, pistols, and a
utility line repairer’s belt. Later that night,
Mammolito and McKillip picked up Manning
and Engel at the Kansas City airport.
Mammolito, McKillip, Manning and
Engel began following Ford. They followed
him to the airport and watched him board a
plane. They later learned that Ford’s mother-in-
law had died and that Ford was traveling to
attend her funeral. Because nothing could be
done until Ford returned, Manning and Engel
went back to Chicago.
Manning and Engel returned to Kansas
City a couple of days later. Mammolito and
McKillip dropped Manning and Engel off in the
Fairfax area of Kansas City, Kansas, for the
purpose of stealing a car to use in the
kidnapping. In the meantime, Mammolito and
McKillip went to the house of Ford’s sister,
Carolyn Heldebrand, to plant a bugging device
on Heldebrand’s telephone. McKillip put on the
utility line repairer’s belt and a “Ma Bell”
identification and climbed a telephone pole
across the street. McKillip attached a bugging
device to Heldebrand’s telephone line. An FM
radio could pick up the device’s signal.
Later Mammolito, McKillip, Manning
and Engel met at a “safe house.” While there,
they installed a red light, police radios, a police
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scanner and an antenna to a car stolen by
Manning and Engel. They then began watching
Ford’s apartment in Kansas City. Manning and
Engel were in the stolen vehicle in one parking
lot, and Mammolito and McKillip were in
McKillip’s car in another parking lot.
Ford and a friend, Mark Harris, arrived
at the apartment at about 2:30 to 3:00 A.M. As
they were getting out of Ford’s truck, Manning
and Engel ran up to them displaying badges and
guns and yelling that they were DEA agents and
that Ford and Harris were under arrest. Ford
and Harris were told to face the truck and to put
their hands on the truck as Manning and Engel
searched them. They took a gun from Ford’s
pants. They handcuffed Ford and Harris and
placed them in the back seat of the stolen car.
They placed duct tape over Ford’s and Harris’
eyes.
The kidnappers allowed Ford to make
some phone calls to raise money. They planned
to pick up any money Ford could raise at
Heldebrand’s house. Heldebrand gathered
$5000 and put it into a sack. Ford’s friends
went to Ford’s apartment and picked up a
briefcase full of money and dropped it off at
Heldebrand’s house.
Manning drove Ford’s truck to
Heldebrand’s house to pick up the money.
Heldebrand handed him a sack of money. When
he returned to the safe house, Manning was
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angry about the small amount of money in the
sack, and he threatened to kill Ford and Harris.
He hit Harris with a pipe. Ford called his sister
and told her that she had forgotten the briefcase
full of money. Manning went back to
Heldebrand’s house and picked up the briefcase.
In total, the kidnappers received about
$30,000 to $50,000. They informed Ford that
they would be back in about 30 days to collect
the rest of the money. .. .
* * *
[Ford and Harris] did not immediately
seek police help because of Ford’s drug dealings
and because they were concerned that the
kidnappers would return in 30 days. Ford
acknowledged the kidnapping to police in 1990,
when he was negotiating a guilty plea to a drug
charge.
In early 1984, a Southwestern Bell
Telephone Company technician removed a
bugging device from a telephone pole near
Heldebrand’s house. The Federal Bureau of
Investigation found a similar device in Engel’s
apartment in Chicago in August 1990.
In February 1984, Lillian Schoenberger’s
car, a 1984 Chevrolet Caprice, was stolen from
the Fairfax area of Kansas City, Kansas. Police
found the car on July 12, 1984, at Kansas City
International Airport. A key was jammed in the
ignition, and a hole, which could have
facilitated an antenna or similar device, had
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been cut in the car’s rear quarter panel.
In 1986, an FBI agent searched a storage
locker belonging to Manning in Chicago. He
found a paper with McKillip’s name on it, two
or three Illinois identification documents, a
Minnesota driver’s license, a Chicago police
uniform badge, a Cook County Sheriff's
Department badge, a document with Manning’s
picture and the name Steve Rosenbloom on it,
assorted documents with other people’s names
on them, a document with Harris’ name on it
and descriptive information about him, a
telephone bugging device, a police-type
transmitter and receiver, and a portable antenna.
Manning admitted that the items belonged to
Buffalo Grove, Illinois, police received
a ring from Sharon Dugan, Engel’s ex-wife.
Dugan testified that she took Engel to the airport
two times in 1984 so that he could travel to
Kansas City. When she picked him up at the
airport after his second trip to Kansas City,
Manning was with Engel. Engel gave her a ring
and told her that he had gotten it from a person
they had kidnapped in Kansas City. Dugan
turned the ring over to law enforcement officers.
Ford identified the ring as the one taken from
him during the kidnapping. Dugan also testified
that she overheard Engel and McKillip talking
about going to Kansas City and acting as DEA
agents to rip off drug dealers.
In June 1990, Heldebrand identified
Manning in a photograph lineup as the man who
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picked up the ransom money. She also
identified Manning at trial. Heldebrand,
however, was unable to identify [Manning] at a
deposition at which she was present or at the
first trial.
Sylvia Herrera testified at trial that she
knew Manning through her boyfriend, Tommy
Dye, who asked her in late 1990 to help provide
Manning an alibi for certain dates in February
1984. Herrera saw Manning in jail, spoke to
him on the telephone, and received letters from
Manning. Herrera went to a library and got
copies of the Sun Times newspaper for Manning
so that he could review what movies and events
occurred during the period in question.
Manning asked Herrera for information about
her family. He instructed her to say that
Manning was with her family during the days in
which the kidnapping occurred and that they
went to movies and did other things together.
Manning told Herrera that she and her family
would be paid thousands of dollars for
providing him with an alibi.
State v. Manning, WD 46206 slip op. at 3-7 (Mo. Ct. App. Aug.
23, 1994). Additional facts will be presented as necessary in
the context of the legal issues raised by Petitioner.
Il. DISCUSSION
Petitioner filed a pro se application for a Writ of Habeas
Corpus on March 26, 1997. Counsel was appointed, and on
October 15, 1997 a First Amended Petition for Writ of Habeas
Corpus was filed. The parties have treated the claims raised in
these petitions as supplemental; that is, the First Amended
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Petition did not replace the pro se petition. Then, on March 24,
1998, a Second Amended Petition was filed that added an
additional claim to those asserted in the First Amended Petition.
As have the parties, the Court will separately consider all claims
raised in these documents. The Court will begin with the
arguments presented by counsel and then consider the
arguments Petitioner has presented on his own behalf.
Asan initial matter, the Court must consider whether the
Antiterrorism and Effective Death Penalty Act ("“AEDPA")
governs this case. The provisions of AEDPA apply to all
habeas petitions filed after its effective date in April 1996.
Lindh v. Murphy, 521 U.S. 320, 326 (1997). This represents
Petitioner's second effort to obtain a writ; the first effort was
filed and dismissed without prejudice before AEDPA became
effective. The instant case was filed after AEDPA's effective
date. Petitioner argues that this case is merely a continuation
of his first case because the first case was dismissed without
prejudice, so pre-AEDPA standards should apply. The Eighth
Circuit recently rejected this argument, Weaver v. Bowersox,
241 F.3d 1024, 1029 (8th Cir. 2001), and on that basis this
Court holds that AEDPA governs this case.
AEDPA amended 28 U.S.C. §2254 by, inter alia,
changing the provisions governing the standard of review.
Generally speaking, section 2254 previously provided for
deference to factual findings made by state courts and for de
novo review of state courts’ conclusions of law. Following
AEDPA, the operative portions of section 2254 state as follows:
(d) 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 ciaim -
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(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.
Under subsection (d)(1), this Court's role in reviewing
factual determinations is virtually the same as it was under prior
law. With respect to the review of legal issues under subsection
(d)(2), a decision is not "contrary to" federal law if the state
court identifies and applies controlling Supreme Court
precedent, even if the federal court would have reached a
different result after applying that precedent. Evans _v.
Rogerson, 223 F.3d 869, 872 (8th Cir. 2000). Thus, a state
court decision is "contrary to" Supreme Court precedent if the
court applies a rule that contradicts the governing law or
"confronts a set of facts that are materially indistinguishable
from a decision of [the Supreme] Court and nevertheless arrives
at a result different from ... precedent." Williams v. Taylor,
120 S.Ct. 1495, 1519-20 (2000). "[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 . . . . [T]he most
important point is that an unreasonable application of federal
law is different from an incorrect application of law." Id. at
1521-22. "Under the unreasonable application’ clause, a federal
habeas court may grant the writ if the state court identifies the
correct governing legal principle from this Court's decisions but
unreasonably applies that principle to the facts of the prisoner's
case." Id. at 1523.
onc
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Petitioner alleges that the passage of time between the
date the crime was committed and the date he was first formally
charged with the crime violated his right to a speedy trial and/or
his rights guaranteed under the Due Process Clause.
Respondent contends that this claim was procedurally defaulted
when it was not presented on appeal. Petitioner rejoins by
arguing that the default should be excused because (1) he is
actually innocent, and (alternatively) (2) appellate counsel was
ineffective in failing to pursue the claim on appeal. Rather than
delve into the complicated issues surrounding these arguments
at this juncture, the Court will address the relatively simpler
matter of the merits and rule against Petitioner on this point.
Cf. Stephens v. Norris, 83 F.3d 223, 224 (8th Cir. 1996) (Court
of Appeals can reject claim on merits without delving into the
"potential procedural-bar morass"); McKinnon v. Lockhart, 921
F.2d 830, 833 n.7 (1991) (suggesting that "it might well be
easier and more efficient to reach the merits than to go through
the studied process required by the procedural default doctrine"
because the District Court "could likely have disposed of the
merits . . . with little effort.").
First, the Sixth Amendment has no bearing on this issue
because Petitioner alleges preindictment, not postindictment,
delay. United States v. Lovasco, 431 U.S. 783, 788 (1977);
United States v. Edwards, 159 F.3d 1117, 1128 (8th Cir. 1998),
cert. denied, 528 U.S. 825 (1999). Petitioner's claims must be
evaluated under the dictates of the Due Process Clause.
To prevail in this circuit on a claim of violation
of due process on account of delay in charging
a suspect, the aggrieved person must prove that
the delay was unreasonable and that it actually
and substantially prejudiced the presentation of
the defense. Under this standard, a showing of
actual prejudice must first be established; if it is,
the court will then inquire into the reasons for
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the delay and balance those reasons against the
demonstrated prejudice.
Bennett v. Lockhart, 39 F.3d 848, 851 (8th Cir. 1994), cert.
denied, 514 U.S. 1018 (1995) (quotation omitted). The Court
concludes that Petitioner cannot satisfy either component of this
analysis.
To prove actual prejudice, the aggrieved
person must specifically identify witnesses or
documents lost during delay properly
attributable to the government. The aggrieved
person also must relate the substance of the
testimony which would be offered by the
missing witnesses or the information contained
in lost documents in sufficient detail to permit a
court to assess accurately whether the
information is material to the accused's defense.
Finally, the aggrieved person must show that the
missing testimony or information is not
available through substitute sources. In sum, the
aggrieved person must demonstrate that the
prejudice actually impaired his ability to
meaningfully present a defense
Id. Petitioner alleges that he was prejudiced because (1)
difficulty in determining the precise date of the kidnaping
prevented him from presenting an alibi witness, (2) McKillip,
the person who provided the safe house, a person Petitioner
theorizes was involved in the crime (Joe Shahan), and an
unnamed alibi witness all died before the case was tried, and (3)
witnesses forgot details, resulting in contradictions throughout
the state's case. This showing falls far short of the standard
required to demonstrate prejudice. Petitioner has not presented
evidence from any alibi witnesses, nor has he identified the
deceased alibi witness. He also has not demonstrated that the
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deceased alibi witnesses’ information was not available from
other sources, which is particularly telling given that this alibi
places him in an entirely different state. The person who
provided the safe house never dealt with anyone other than
Mammolito, so this person's death did not prejudice Petitioner's
case. The impact of Shahan's and McKillip's deaths is purely
speculative. Finally, discrepancies in testimony and forgotten
details do not qualify as prejudice.
"If actual and substantial prejudice has _ been
demonstrated, the government may be required to show that the
delay was for investigative purposes or some other legitimate
reason... . Absent a showing that the government acted
intentionally to harass or to gain a tactical advantage, no due
process violation may be found." United States v. Benshop,
138 F.3d 1229, 1232-33 (8th Cir. 1998). Petitioner emphasizes
Ford's and Harris' testimony that they separately reported the
kidnaping in 1984 or 1985. E.g., Tr. at 249 (Harris), at 282-85
(Ford). However, all they could report was the fact that they
had been kidnaped; the victims thought they were being arrested
and took no particular notice of the kidnapers, and the first time
they realized they were being kidnaped was when duct tape was
placed over their eyes -- by which time it was impossible to take
note of their abductors. Tr. at 209, 215, 272. It was not
possible to search for physical evidence because neither victim
knew where they had been taken. Showing Ford and Harris
pictures of possible suspects was impossible because there were
no suspects. Law enforcement did not receive any information
about the perpetrators until Mammolito discussed the matter in
August 1989. Tr. at 381. Ford, Harris and Dugan were
interviewed within five months. Tr. at 436-37. Heldebrand was
interviewed in June 1990, at which time she was shown several
photo arrays. Tr. at 471, 504-05. It was not until Mammolito
discussed the crime that other seemingly unrelated matters
could be connected to the crime, such as the theft of the car
from Kansas and the discovery of the bugging device on
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Heldebrand's phone. Petitioner was charged on a four-count
criminal complaint in July 1990. Ultimately, there is no
indication that any level of law enforcement acted intentionally
in delaying the prosecution of this matter for the purposes of
harassing or prejudicing Petitioner.
B. False and Perjured Testimony
Petitioner contends that newly discovered evidence
demonstrates both that Mammolito lied at trial and that the
prosecution was aware of this fact. Respondent contends that
this issue was procedurally defaulted, and Petitioner argues to
the contrary; as with the preceding issue, it is more expedient to
address the merits.
Some of the examples of perjury do not qualify as
"newly discovered;" Petitioner has compared Mammolito's
statements (1) during interviews with law enforcement officers,
(2) at the preliminary hearing, and/or (3) at the first trial to his
testimony at the second trial and identified eight areas of
inconsistency. These inconsistencies relate to the following
questions:
l. When did Mammolito go to Chicago to meet McKillip?
ya Who was present at the meeting at Engel's house?
2. Where was the safe house?
a Did they or did they not go by the safe house on
the second day the Chicagoans were in Kansas
City?
3. Who did Ford call to raise the ransom money?
6. Did Mammolito ever go in the hotel room he rented for
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Petitioner and Engel?
cs When was the car stolen from Kansas, and what color
was it?
8. Did Mammolito have a deal with the prosecutor's office
regarding his testimony?
To prevail on this claim, Petitioner must demonstrate "that: (1)
the prosecution used perjured testimony; (2) the prosecution
knew or should have known of the perjury; and (3) there is a
‘reasonable likelihood’ that the perjured testimony could have
affected the jury's judgment." United States v. Martin, 59 F.3d
757, 770 (8th Cir. 1995). It must be remembered that not every
inconsistency qualifies as perjury, and some contradictions are
insufficiently material to justify labeling them as perjury. Id.
Initially, the Court notes that Mammolito was subjected
to a very vigorous cross-examination that highlighted the
discrepancies in his testimony. The jury was fully aware of
Mammolito's prior statements, and nonetheless chose to believe
him. This is not a case where the truth was buried by the
prosecution and hidden from the jury, rather, it a case in which
the jury was called upon to perform its primary function: i.e.,. -
credibility assessment. In making this assessment, the jury was
required to compare Mammolito's testimony to that offered by
other witnesses and decide how much (if any) of his testimony
should be credited. To the extent that the jury was aware of
Mammolito's prior inconsistent statements, no misconduct
occurred. ;
The Court further observes that several of these matters
are too insignificant to qualify as perjury or to have any effect
on the jury. For instance, it matters little whether Mammolito
went into the hotel room. Although there were discrepancies
regarding the order in which Ford called people to raise the
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ransom money, there was basic agreement as to who was called.
These are but two examples; the Court does not believe that
Items 4 - 7 identified by Petitioner are terribly significant
matters. =
The seventh item stands alone in that it is supported
with additional information that was not presented at trial.
Petitioner contends that Mammolito received special treatment
from the guards at the Platte County Jail while held there’ and
that he was provided with copies of "transcripts and other
various documents in order for him to get his story together for
the retrial." First Amended Petition at 27. The "special
treatment" took the form of special smoking accommodations
and the provision of food from a local barbecue restaurant. The
record does not reflect how often these privileges were
bestowed, and in the case of the smoking privileges this may be
a simple reference to the fact that he was transferred from the
Clay County Jail (where smoking was not allowed) to the Platte
County Jail (where smoking was allowed). See Gipson
Affidavit, ¥7. With respect to anything more that may have
been done for Mammolito while in jail during the trial, there is
no indication that the Clay County prosecutor knew what the
Platte County jailors were doing. Petitioner also relies on
Mammolito's letters indicating his expectation -- and
referencing an alleged agreement -- that he would be paid $25
a week while he was in Platte County. Petitioner has not
established the existence of such a deal, nor has he
demonstrated that anyone other than Mammolito believes it to
have existed.
In a letter dated February 7, 1992 and addressed to
*7Mammolito was serving a federal sentence but was
temporarily held in the Platte County Jail during these
proceedings.
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Robert Quid, a Sergeant on the Buffalo Grove (Illinois) police
force, Mammolito wrote the following: "As you know ive [sic]
read all of the investigation's reports on this case and i [sic]
must say that im [sic] quite impressed at the way you put this
case together on my slim statement given in August of 1989. .
.." Petitioner also points to an affidavit from Harold Bascom -
who was also held in the Platte County Jail while Mammolito
was there - averring that he saw Mammolito with copies of
transcripts "as well as statements and police reports" and that
Mammolito said the Clay County Prosecutor's office supplied
them so he could address the “gaping inconsistencies’ of his
already incredible story.". Mammolito also allegedly told
Bascom that after the mistrial, he was warned that "all deals
were off" (whatever deals those might have been) if his
testimony was not better at the second trial. Finally, Bascom
describes statements by Mammolito in¢icating that he was
setting up Manning in the hopes of lemiency. Petitioner
characterizes this as newly discovered evidence demonstrating
that Mammolito lied.’
Petitioner does not suggest that the prosecutor knew
about the statements allegedly made by Mammolito to Bascom,
so the second requirement under Martin is absent. Moreover,
careful review of Bascom's affidavit reveals that Mammolito
allegedly was trying to curry favor with the government and
was seeking some measure of revenge against Petitioner, but
there is little if anything to indicate that Mammolito admitted to
Bascom that his testimony was a lie. It should also be noted
that during cross-examination Mammolito admitted his dislike
for Petitioner, Tr. at 393-94, and the possibility of leniency was
*In the context of this argument, Petitioner does not
offer a "free standing" claim of actual innocence; that is, he
does not allege here that he is entitled to a Writ of Habeas
Corpus because he is actually innocent.
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also addressed. Tr. 389-91.
The Court rejects Petitioner's suggestion that the
prosecutor provided Mammolito with trial and investigative
materials so that he could "get his story straight" for two
reasons. First, this act was allegedly accompanied by a threat
that the "deal" would be "off," but there was no deal. Second,
if the alleged purpose was to allow Mammolito to conform his
testimony to that of other witnesses or to his own prior
statement, the effort - as amply documented during cross-
examination - failed. Petitioner's argument might make more
sense if Mammolito "suddenly" testified in a manner that was
completely consistent with Ford's, Harris', or Heldebrand's
testimony. That this did not occur demonstrates Petitioner's
argument is flawed. Finally, the Court reiterates its earlier
observation that Mammolito was subjected to a rather lengthy
cross-examination during which nearly every discrepancy was
brought to the jury's attention, and Petitioner's arguments do not
demonstrate that these inconsistencies amounted to the knowing
use of perjury that had an effect on the jury.’
C. Heldebrand's Identification
During trial, counsel made no objection to Heldebrand's
in-court identification or to the photographic array she was
shown in June 1990. Counsel's failure to object and/or move to
suppress these identifications was raised in the postconviction
proceeding and on appeal. In the context of this argument,
Petitioner primarily argues the merits of the identification claim
as opposed to the alleged ineffective assistance for failing to
‘In his Traverse, Petitioner makes a reference to Brady
v: Maryland, 373 U.S. 83 (1963), but an argument predicated on
Brady was not advanced in the Pro Se Petition, the First
Amended Petition, or the Second Amended Petition.
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raise the issue. Respondent argues that the claim has been
procedurally defaulted, and Petitioner rejoins by claiming, inter
alia, that the Missouri Court of Appeals addressed the merits of
the identification claims, thereby vitiating any default.
The Court does not agree with Petitioner's
characterization. The Missouri Court of Appeals addressed
certain aspects of the merits of the identification arguments, but
only in the context of determining whether or not the alleged
ineffectiveness prejudiced Petitioner as required under
Strickland v. Washington. Nonetheless, given both the extent
to which the underlying claim is intertwined with the question
of ineffective assistance and the relatively easier task of
considering the merits, the Court will not dwell on the issue of
procedural default.
There are two aspects to this claim. The first involves
Petitioner's claim that the photographic array shown to
Heldebrand in June 1990 was unduly suggestive.
The analysis for challenging an improper
identification mandates two separate findings.
First, a court must determine whether the
challenged confrontation between the witness
and suspect was impermissibly suggestive. If
so, then the court must decide whether, under
the totality of the circumstances, the suggestive
confrontation created a substantial likelihood of
irreparable misidentification. Second, a court
must ascertain whether the identification
procedure was so needlessly suggestive and
conducive to mistaken identification as to be
fundamentally unfair.
Griffin v. Delo, 33 F.3d 895, 908-09 (8th Cir. 1994), cert.
denied, 514 U.S. 1119 (1995) (internal citations omitted). In
A-32
the First Amended 29.15 Motion, Petitioner argued that the
alray was suggestive because he was depicted in two different
pictures. In this proceeding, he contends the array was
suggestive but in doing so does not address the contents of the
array itself, but rather challenges (1) Heldebrand's certainty in
identifying Petitioner, (2) inconsistencies between Heldebrand's
description and Petitioner, and (3) the law enforcement officer's
motivation of putting Petitioner's photos in the array and not
including McKillip's or Mammolito's. First Amended Petition
at 33-34. These arguments do not bear on the initial issue of
suggestiveness but rather relate to the intermediate issue of
whether there was a substantial likelihood of misidentification.
See id. at 909 (listing "the factors a court is to consider in
evaluating the likelihood of misidentification"). This
intermediate issue is to be addressed only if there is first a
finding of unfair suggestiveness, but Petitioner does not provide
any basis for making such a finding. In any event, the Court
concludes that the array was not suggestive for the reasons
intimated in the state court proceedings; the fact that a suspect
is included twice in an array does not demonstrate
suggestiveness, particularly when (as is the case here) the
photos of the suspect are different. E.g., Armstrong v.
Gammon, 195 F.3d 441, 445 (8th Cir. 1999), cert. denied, 529
U.S. 1092 (2000). Petitioner's argument regarding Heldebrand's
pretrial identification represent grounds for impeachment, but
not constitutional infirmities.
Petitioner's arguments about Heldebrand's in-court
identification appear virtually the same as those advanced with
respect to her pretrial identification. The legal analysis is also
practically the same. "We follow a two-step analysis in
reviewing the . . . . admission of these in-court identifications.
First, we must determine whether the initial confrontation
between the suspect and the witness was impermissibly
suggestive; if so, we must then determine whether, under the
totality of the circumstances, the suggestive procedure created
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a very substantial likelihood of irreparable misidentification."
United States v. Patterson, 20 F.3d 801, 805-06 (8th Cir.), cert.
denied, 513 U.S..845 (1994) (quotation omitted). As before,
there is no basis for concluding that the initial identification was
the product of a suggestive procedure, so there is no need to
conduct further inquiry into the matter.
D. Sylvia Herrera's Testimony
Petitioner contends that Herrera's testimony about
Petitioner soliciting her help to fabricate an alibi should have
been suppressed because it was the product of a Sixth
Amendment violation, and counsel's failure to object
constituted ineffective assistance of counsel. The Court again
elects to bypass the various arguments favoring and opposing
the existence of a procedural default, preferring instead to
address the merits.
While awaiting extradition from Illinois to Missouri on
these charges, Petitioner and Tommy Dye were cellmates. The
record reflects that Dye reported to the FBI statements made by
Manning, and that Dye was instructed not to initiate
conversations with Manning regarding the kidnaping and
related charges. Dye signed a document confirming his
understanding that he was not to "ask Steve Manning about his
current pending charges, which include the proceedings
involving extradition to Missouri and/or the underlying
Missouri kidnapping charges nor am I to ask anything which
may relate to legitimate defense strategy concerning the pending
charges." Petitioner's Exhibit N. However, he was told it was
acceptable for him to "discuss other crimes with Manning,
including any involvement that Manning had in the murder of
James Pellegrino and any other murders." Id. Dye was later
wired with a body microphone and recorder, but the record does
not reflect the content of any of his conversations with
Manning.
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Petitioner argues that United States v. Henry, 447 U.S.
264 (1980) and Maine v. Mouton, 474 U.S. 159 (1985) control
and clearly establish that instructing a jailhouse informant to
listen to and report statements made by a cellmate regarding
pending charges violates the Sixth Amendment right to counsel.
However, the more applicable case is Kuhlmann v. Wilson, 477
U.S. 436 (1986). There, the Supreme Court observed that
Henry "left open the question whether the Sixth Amendment
forbids admission in evidence of an accused's statements to a
jailhouse informant who was placed in close proximity but
made no effort to stimulate conversations about the crime
charged," 477 U.S. at 456 (quotation omitted), and that Mouton
focused on "secret interrogation by investigatory techniques that
are the equivalent of direct police interrogation." Id. at 459.
The Court went on to hold that "a defendant does not make out
a violation of that right simply by showing that an informant,
either through prior arrangement or voluntarily, reported his
incriminating statements to the police. Rather, the defendant
must demonstrate that the police and their informant took some
action, beyond merely listening, that was designed deliberately
to elicit incriminating remarks." Id; see also Robinson v.
Clarke, 939 F.2d 573, 576 (8th Cir. 1991).
It is true that Dye was told he could discuss other
specified crimes, but this was merely a part of the larger
instruction that he not initiate discussions about the kidnaping.
Even if questions about the murders were asked -- and were
improper -- they would not render information Manning
volunteered about these crimes inadmissible under the Sixth
Amendment. The Supreme Court recently reaffirmed that the
Sixth Amendment right to counsel is offense-specific. Texas v.
Cobb, No. 99-1702, slip op. at 2 (U.S. Apr. 2, 2001). In this
context the term "offense" may be broader than that described
in the charging document, id. at 7 (applying standard from
Blockburger v. United States, 284 U.S. 299 (1932) for this
purpose), but there is no contention that the instant crimes are
A-35
related to the murders described in Petitioner's Exhibit N. It
may be that Manning's statements about the murders (if there
were any) were inadmissible in a trial on those crimes, but that
has no effect on the admissibility of statements Manning
volunteered about unrelated offenses. Ultimately, the record
does not reflect that Dye initiated discussions about these
crimes, so the mere fact that he had received instruction from
the FBI does not demonstrate that his activities violated
Petitioner's Sixth Amendment righis.
E. Ineffective Assistance of Trial Counsel: Failure to Present
Certain Witnesses
The First Amended Petition incorporates and augments
the pro se Petition's presentation of this issue. The contention
is that trial counsel should have called the following witnesses
to provide an alibi for Petitioner: Gustav Guenther, Marlies
Vukelich, Corine (Cory) Robin, and Officer Bruce Vaccaro.’
A claim of ineffective assistance of counsel is analyzed
under the standard set forth in Strickland v. Washington, 466
U.S. 668 (1984). "This standard requires [Petitioner] to show
that his 'trial counsel’s performance was so deficient as to fall
below an objective standard of reasonable competence, and that
the deficient performance prejudiced his defense.’" Nave v.
Delo, 62 F.3d 1024, 1035 (8th Cir. 1995), cert. denied, 517 U.S.
‘Interestingly, before the defense rested Petitioner
answered affirmatively when the trial judge asked "whether
you're satisfied that whoever you have asked [trial counsel] to
call on your behalf has in fact [been] called or [he] followed
your instructions in that regard." Tr. at 596. He also denied
that "there was in that connection the calling of the witnesses .
... been any refusal ... to subpoena or call someone on your
behalf." Tr. at 596-97.
A-36
1214 (1995) (quoting Lawrence v. Armontrout, 961 F.2d 113,
115 (8th Cir. 1992)). This analysis contains two components:
a performance prong and a prejudice prong.
Under the performance prong, the court must
apply an objective standard and "determine
whether, in light of all the circumstances, the
identified acts or omissions were outside the
wide range of professionally competent
assistance,” Strickland, 466 U.S. at 690, while at
the same time refraining from engaging in
hindsight or second guessing of trial counsel's
strategic decisions. Id. at 689. Assuming the
performance was deficient, the prejudice prong
"requires proof ‘that there is a reasonable
probability that, but for a counsel's
unprofessional errors, the result of the
proceeding would have been different."
Lawrence, 961 F.2d at 115 (quoting Strickland,
466 U.S. at 694).
Id. Failure to satisfy both prongs is fatal to the claim, see Pryor
v. Norris, 193 F.3d 710, 713 (8th Cir. 1997) (no need to "reach
the performance prong if we determine that the defendant
suffered no prejudice from the alleged ineffectiveness").
On appeal, Petitioner challenged only the failure to call
Robin as a witness.° In rejecting this claim, the Missouri Court
°Although there is some question as to whether
Petitioner was required to seek transfer to the Missouri Supreme
Court in order to avoid defaulting his claims, there is little
doubt that failure to raise claims regarding the other witnesses
in the first appeal of right constitutes a procedural default.
However, the state has not raised this issue, and the law is
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of Appeals found that trial counsel "did not call Robin during
the second trial because she had told his investigator that her
husband was secretly held by the government and drugged to
learn secrets about the Russian Government. [Petitioner's]
attorney stated that he had serious concerns at that point about
Robin's ability to recall and relate information." Manning, slip
op. at 12. This finding is supported by the record, and the
conclusion that the decision not to call Robin was reasonable
trial strategy is not an unreasonable application of Strickland.
One of a trial attorney's many tasks is to evaluate the benefits
and risks of a potential witness’ testimony, and the decision not
to call Robin was a legitimate result of that process.
The Rule 29.15 court concluded that trial counsel
decided not to call Vukelich "because he learned from her that
she had received written instructions on how to testify or what
to say. [Trial counsel] indicated he did not want to put her on
the witness stand because of a fear the letter may be discovered
and substantially undermine the defense. [In light of Herrera's
testimony], if Vukelich testified and the letter was discovered,
presently unclear as to whether the Court can raise the issue of
procedural default sua sponte. Trest v. Cain, 522 U.S. 87, 90-
91 (1997). Were it clearly permissible to do so, the Court
would hold these aspects of this claim to be procedurally
defaulted.
Respondent argues that the failure to seek transfer to the
Missouri Supreme Court constitutes a procedural default. The
Court is not convinced that this is correct, and notes that the
issue is currently pending before the Eighth Circuit. Consistent
with its approach on other issues in this case, the Court deems
it more expedient to reject the claim on its merits rather than
determining whether it has been defaulted for failure to seek
transfer.
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[trial counsel] believed it would strongly corroborate the State's
case concerning the establishment of a fabricated alibi by
Movant and would seriously undermine the defense."
Postconviction Legal File at 71. This is also a reasonable
application of Strickland.
With respect to the remaining two witnesses, the motion
court declared that "[n]o evidence, other than the assertion of
Movant, was presented thai either Guenthner nor [sic] Varacco
[sic] were available to testify at the second trial."
Postconviction Legal File at 71. Absent a showing that the
witness was available for trial, Petitioner's claim cannot
succeed. See Owens v. Dormire, 198 F.3d 679, 682 (8th Cir.
1999), cert. denied, 120 S.Ct. 2725 (2000).’ There is also
nothing to demonstrate the content of these witness' testimony.
Consequently, the state court's decision on this issue is
reasonable and entitled to deference.
Within this claim, Petitioner also challenges trial
counsel's failure to call him to the stand. The motion court
observed that Petitioner told of his right not to testify during the
trial. Postconviction Legal File at 71. The trial transcript
"In fact, Vaccaro was advised by his attorney not to
appear at the Rule 29.15 Hearing or to provide a deposition for
use at the proceeding. See Postconviction Transcript at 77-79.
Petitioner contended Vaccaro was threatened by FBI Agent
Robert Buchan, but offers no support for that contention. He
has pointed to portions of the transcript indicating that Bobby
Sue May, Margaret Pettiford and Bobby Lee Pettiford were
approach by Buchanan, who warned them about Petitioner's
dangerousness. None of these people were potential witnesses,
and it is a stretch to conclude that just because Agent Buchan
talked to non-witnesses he must have also talked to potential or
actuai witnesses.
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confirms the accuracy of this holding. In addition, the Missouri
Court of Appeals affirmed the motion court on this point,
disagreeing with Petitioner's contention that he desired to and
was ready to testify but was refused the opportunity. Manning,
slip op. at 10-11. This holding is entitled to deference because
it is supported by the record. Petitioner was aware of his right
to testify and chose not to do so; moreover, he told the judge
that there were no other witnesses he wanted called on his
behalf. Tr. at 595-97. This claim must be denied.
F. Ineffective Assistant of Trial Counsel: Failure to Show
FBI's
Motive to Target Petitioner
Respondent correctly contends this claim was
procedurally defaulted when it was not raised on appeal.
Petitioner argues that the procedural default is excused for two
independent reasons: (1) ineffective assistance of appellate
counsel for failing to raise the issue on appeal and (2) he is
actually innocent. The Court rejects both contentions, and
alternatively holds that the claim lacks merit.
1. Ineffective Assistant of Appellate Counsel
Petitioner's postconviction proceeding was governed by
Missouri Rule of Criminal Procedure 29.15, which at the time®
was "a complicated, hybrid scheme which consolidates the
direct appeal from a criminal conviction and the civil appeal
from the denial of post-conviction relief." Lowe-Bey v. Groose,
28 F.3d 816, 818 (8th Cir.), cert. denied, 513 U.S. 1061 (1994).
"Following the filing of a Rule 29.15 motion, the defendant
litigates his or her Rule 29.15 claims through the sentencing
®Rule 29.15 was amended effective July 1, 1997; the
amended version does not apply to Petitioner. Rule 29.15(m).
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court while the direct appeal is held in abeyance. If the
sentencing court denies Rule 29.15 relief, a separate notice of
appeal must be filed in the sentencing court if the defendant
desires to appeal issues raised in the 29.15 motion." Id. at 819.
The two appeals are consolidated into a single "hybrid" appeal,
but "Rule 29.15 contemplates that the direct appeal and the
29.15 appeal retain their independent identity even though
consolidated." Id.
A consequence of the separate appeals retaining their
individual character is that the obligation to pursue an appeal
from the 29.15 ruling rests with postconviction counsel, not
appellate counsel. "No Missouri rule of appellate procedure or
criminal procedure relieves post-conviction relief counsel of his
or her duties before the time arrives for filing the notice of
appeal challenging the denial of Rule 29.15 relief." Id. This is
true even though the same attorney is performing a dual role:
appealing issues in the direct appeal and appealing issues raised
in the 29.15 proceeding. Petitioner is not entitled to effective
assistance of counsel in a post-conviction proceeding, Coleman
v. Thompson, 501 U.S. 722 (1991), and therefore is not entitled
to effective assistance of counsel in an appeal from the post-
conviction proceeding. Lowe-Bey, 28 F.3d at 819-20. Thus,
when the appellate counsel is performing his function of
appealing issues from the 29.15 proceeding, there is no Sixth
Amendment protection; the Sixth Amendment only applies to
the attorney's performance with respect to issues arising from
the direct appeal. There can be no claim of ineffective
assistance in the appeal of issues raised in the 29.15 proceeding,
so the argument does not present a basis for excusing the
procedural bar.
2. Actual Innocence
"To ensure that the fundamental miscarriage of justice
exception would remain rare’ and would only be applied in the
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‘extraordinary case,’ while at the same time ensuring that the
exception would extend relief to those who were truly
deserving, this Court explicitly tied the miscarriage of justice
exception to the petitioner's innocence." Schlup v. Delo, 513
U.S. 298, 321 (1995).
[A] petitioner who raises a gateway claim of
actual innocence must satisfy a two-part test.
First, the petitioner's allegations of
constitutional error must be supported with new
reliable evidence that was not presented at trial.
Second, the petitioner must establish that it is
more likely than not that no reasonable juror
would have convicted him in the light of the
new evidence. The actual innocence exception
requires review of procedurally barred, abusive,
or successive claims only in the narrowest type
of case -- when a fundamental miscarriage of
justice would otherwise result.
Weeks v. Bowersox, 119 F.3d 1342, 1351 (8th Cir.) (en banc),
cert. denied, 522 U.S. 1093 (1997).
A petitioner asserting a Schlup "gateway" claim must
support his allegations with reliable evidence. Schlup, 513 U.S.
at 324; McCoy v. Norris, 125 F.3d 1186, 1 190 (8th Cir. 1997),
cert. denied, 523 U.S. 1008 (1998); Battle v. Delo, 64 F.3d 347,
354 (8th Cir. 1995), cert. denied, 517 U.S. 1235 (1996). The
emphasis is on evidence - not merely allegations or speculations
- to prove his point. Weeks, 119 F.3d at 1352-53. The
evidence must demonstrate factual innocence of the crime;
evidence bearing on the allegedly improper application of
criminal law will not suffice. Embrey v. Hershberger, | 31 F.3d
739, 741 (8th Cir. 1997) (en banc), cert. denied, 525 U.S. 828
(1998); Pitts v. Norris, 85 F.3d 348, 350-51 (8th Cir.), cert.
——
denied, 519 U.S. 972 (1996). Examples of the proper type of
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evidence include "exculpatory scientific evidence, trustworthy
eyewitness accounts or critical physical evidence... ." Schlup,
513 U.S. at 324. In addition, "an important initial step in the
analysis of a habeas petitioner's claim of actual innocence" is
whether the proffered evidence is new. McCoy, 125 F.3d at
1190; see also Schlup, 513 U.S. at 324. Evidence that is merely
cumulative of evidence already offered at trial will not satisfy
the standard. McCoy 125 F.3d at 1191. Furthermore, evidence
that was known to or readily available to the criminal defendant
will not satisfy the Schlup standard. E.g., Schlup, 513 U.S. at
327-28 ("the emphasis on ‘actual innocence’ allows the
reviewing tribunal also to consider the probative force of
relevant evidence that was either excluded or unavailable at
trial. (emphasis added)); Bannister v. Delo, 100 F.3d 610, 618
& n.7 (8th Cir. 1996), cert. denied, 521 U.S. 1126 (1997); see
also Lucas v. Johnson, 132 F.3d 1069, 1082 n.3 (Sth Cir. 1998).
"In deciding whether a petitioner has made the necessary
showing of innocence, a federal court must make its own
determination of whether the probative force of the newly
presented evidence in connection with the evidence of guilt
adduced at trial is sufficient to warrant consideration of the
otherwise barred claims. ... Ifa petitioner presents evidence
of his actual innocence so strong that a court cannot have
confidence in the outcome of his state trial, it should not allow
his execution unless it is also satisfied that his trial was free of
nonharmless constitutional error." Amrine, 128 F.3d at 1227
(quotation omitted). This inquiry may require the Court to
make credibility decisions about the witnesses involved. Id. at
1228.
In considering Petitioner's claim, the Court considers the
facts outlined by the Missouri Court of Appeals as well as the
following additional facts gleaned from the transcript but not
specifically cited by that court. First, Agent Robert Buchan
interviewed Heldebrand and showed her the photographs in
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June 1990. He testified that Heldebrand identified the first
picture of Manning "with some degree of certainty," declaring
that it "looked very similar but he had lighter hair." Tr. at 508.
Second, the funeral for Ford's mother-in-law was on February
9, 1984, Tr. at 434, and bank records confirmed that
Heldebrand withdrew a large sum of money on February 10,
1984. Tr. at 499, 502-03. Finally, the Court also observes a
great many facts that corroborate the verdict, including (1)
Dugan's observation that Engel and Petitioner returned to
Chicago on the same flight from Kansas City and (2)
Petitioner's acknowledged possession of papers bearing
personal information about Harris.
In support of his "gateway" claim of actual innocence,
Petitioner relies heavily upon the inconsistencies in the various
witnesses’ testimonies. This is not new evidence within the
meaning of Schlup. He also offers various forms of additional
impeachment, but this will not satisfy Schlup because (1) none
of it is reliable, nor does it persuade the Court that Petitioner is
probably innocent, and - more importantly - (2) impeachment
evidence does not satisfy Schlup. E.g., Mortis v. Dormire, 217
F.3d 556, 559 (8th Cir.), cert. denied, 121 S.Ct. 439 (2000)
(evidence that only impeaches a witness does not satisfy
Schlup); Johnson v. Norris, 170 F.3d 816, 818 (8th Cir. 1999)
(evidence that is not exculpatory does nct establish actual
innocence). The Court concludes that Petitioner has not
demonstrated actual innocence, so the manifest injustice
exception to the procedural default does not apply.
3. The Merits
Even if the procedural default could be excused, this
claim must fail on the merits. At the 29.15 hearing, Petitioner's
trial counsel explained that the problem with such a defense is
that it risked "opening up a series of doors into a trial that we
thought that we might be able to keep into a very small
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spectrum." Postconviction Transcript at 39. He further
explained that he did not think it would be in Petitioner's best
interests to present this theory.
The motion court held that this defense "would not have
been helpful" and declining to employ it was "valid trial
strategy." Postconviction Legal File at 80. The Court agrees;
trial counsel could legitimately conclude that more harm than
good would be done if the jury heard that Petitioner filed suit
alleging governmental misconduct while he was in jail on other
charges and that Petitioner had been arrested and charged on
multiple prior occasions.
G. Prosecutorial Misconduct During Closing Argument
Petitioner contends the prosecutor made improper
statements during closing argument when he (1) referred to
Petitioner as a "professional criminal," (2) told the jury to "send
a message" to Petitioner that "Clay County doesn't like crime."
Trial counsel did not object to the first statement; he objected
to the second statement (which is actually reflective of a serious
of arguments) on the ground that "the laws in Clay County are
not different than any place else in the country." Petitioner
challenged the second series of statements on appeal,
characterizing them as scare tactics. The Missouri Court of
Appeals concluded that this argument was different than the one
raised in the objection during trial and reviewed the claim for
plain error.
Respondent contends this claim is_procedurally
defaulted. Petitioner responds by pointing to the Court of
Appeals’ discussion of the point. It is true that a procedural
default is vitiated if the state courts reach the merits, but this
will not salvage Petitioner's claims regarding the "professional
criminal" comments. This claim has never been raised or
addressed in state court, and for that reason it has been
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defaulted.
There is a split of circuit authority as to whether plain
error review by a state court removes the procedural bar.
However, when the state court conducts a plain error review, it
is appropriate for the habeas court to conduct a similar review.
Burns v. Gammon, 173 F.3d 1089, 1095 (8th Cir. 1999). Under
this standard, Petitioner must demonstrate that the prosecutor's
statements violated his Due Process rights, and then must
demonstrate plain error; i.e., manifest injustice flowing from
that violation.
"The test for prosecutorial misconduct has two parts.
First, the remarks must have been improper, and second, the
remarks must have been so prejudicial as to deprive the
defendant of a fair trial." Young v. Bowersox, 161 F.3d 1159,
1162 (8th Cir. 1998), cert. denied, 528 U.S. 880 (1999).
Needless to say, if the remarks were not improper, there is no
unfair prejudice to be gauged and the second component of the
analysis is unnecessary. However, in the event an improper
comment is revealed, it must be remembered that the standard
of prejudice is relatively high. "The petitioner must show that
the alleged improprieties were 'so egregious that they fatally
infected the proceedings and rendered his entire trial
fundamentally unfair." Moore v. Wyrick, 760 F.2d 884, 886
(8th Cir. 1985). Under this standard, a petitioner must show
that there is a reasonable probability that the error complained
of affected the outcome of the trial--i.e., that absent the alleged
impropriety, the verdict probably would have been different."
Newlon v. Armontrout, 885 F.2d 1328, 1336-37 (8th Che.
1989), cert. denied, 497 U.S. 1038 (1990) (second quotation
omitted); see also Darden v. Wain wright, 477 U.S. 168, 181
(1986). In evaluating the potential for prejudice, the Court must
consider "(1) the type of prejudice that arose from the remark;
(2) whether defense counsel did anything in his argument to
minimize the prejudice; (3) whether the jury was properly
A-46
instructed; and (4) whether there is a reasonable probability that
the outcome of the [proceeding] would have been different. . .
." young, 161 F.3d at 1162. With regard to the third element,
the fact that the jury was generally instructed that arguments of
counsel are not evidence is insufficient to thwart a showing of
prejudice. E.g., Antwine v. Delo, 54 F.3d 1357, 1364 (8th Cir.
1995), cert. denied, 516 U.S. 1067 (1996); Newlon, 885 F.2d at
1337. Then, because the claim was defaulted and reviewed for
plain error, Petitioner must not only demonstrate the prejudice
described above, but must also demonstrate manifest injustice
resulting from that prejudice.
The full text of the challenged portion of the argument
(which occurred during rebuttal) is set forth below:
Find the defendant guilty. He came
down from Chicago and committed an offense
not just against Charlie Ford and Mark Harris,
but against Clay County. And yes Mammolito's
got convictions but Mammolito testified it's
Manning that's the professional. ... Tell him
Clay County doesn't like crime. Justice has to
be even-handed. When the evidence is
presented we don't shirk from our responsibility.
Proof beyond a reasonable doubt will convict.
You don't send the defendant a message that you
like drugs, that you like Charlie Ford, that you
like Mark Harris; you send him a message that
you do crime in in Clay County, you're going to
be held accountable. We don't like crime. By
your message convict him on all four counts.
During his closing argument, Petitioner's attorney referred to the
victims’ criminal histories. Tr. at 638-39. The prosecutor's
argument is a response to that line of argument; it asks the jury
not to allow negative views about the victims or witnesses to
A-47
excuse the crime charged in this case, and stresses that
convicting Petitioner would not be tantamount to approval of
drug dealers. Read in context the statement declares that the
jury must convict Petitioner if he is proved guilty beyond a
reasonable doubt even if the victims were also criminals. The
Court is not persuaded that the argument is improper, and there
is no manifest injustice.
H. Ineffective Assistance of Appellate Counsel
Within this claim, Petitioner alleges three instances of
ineffective assistance of appellate counsel. The first relates to
the failure to raise the issue addressed in Part II(A), above. The
Court has already concluded that claim lacks merit, so there
could be no prejudice from appellate counsel’s failure to raise
the claim on appeal.
The second instance involves appellate counsel’s failure
to present Bascom’s affidavit to the Missouri Court of Appeals.
It is doubtful that there was a procedure permitting appellate
counsel to take this action. State v. Skillicorn, 944 S.W.2d 877,
896 (Mo.) (en banc), cert. denied, 522 U.S. 999 (1997); State v.
Gray, 24 S.W.3d 204, 209 (Mo. Ct. App. 2000). Even if the
Missouri Court of Appeals would have acknowledged the
existence of such a procedure, it likely wold not have employed
it here because Bascom’s affidavit was not substantive evidence
that would have “completely exonerated” Petitioner. State v.
Suter, 931 S.W.2d 856, 864 (Mo. Ct. App. 1996). More
importantly, however, Petitioner has not demonstrated it was
physically possible for appellate counsel to have taken
advantage of any such procedures. Bascom’s affidavit is dated
August 16, 1994, and the Missouri Court of Appeals issued its
decision exactly one week later. There is no indication
anywhere in the record as to if and when appellate counsel
received a copy of Bascom’s affidavit. Finally, the Court holds
that Strickland’s prejudice prong was not violated because
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Petitioner could still have asserteda claim of newly discovered
evidence in a state habeas proceeding. E.g., Wilson v. State,
813 S.W.2d 833, 834-35 (Mo. Ct. App. 1991).
The third ground alleges appellate counsel should have
raised an argument regarding governmental tampering with
witnesses at trial and at the Rule 29.15 hearing. Petitioner’s
argument to the contrary, there is nothing in the record to
support making such allegations on appeal. Consequently, the
failure to do so constituted a reasonable decision on counsel’s
part. Cf. Roe v. Delo, 160 F.3d 415, 418 (8th Cir. 1998)
(describing need for appellate counsel to “screen [] out” the
weaker claims).
I. False and Perjured Testimony
Acting pro se, Petitioner presents arguments that mirror
those raised by counsel in Part II(B), above. For the reasons
previously discussed, the Court rejected Petitioner’s pro se
arguments.
J. False and Perjured Testimony Regarding “Deals”
In another argument challenging the prosecutor’s use of
allegedly perjured testimony, Petitioner focuses upon
Mammolito’s testimony on direct testimony that he had not
entered an agreement in exchange for his testimony. On cross
examination, Mammolito agreed that he had been promised he
would not be prosecuted for his part in the kidnapings and that
his testimony would not be used against him. Petitioner
contends this exchange, coupled with the other “evidence” of a
deal discussed previously in Part II(B), demonstrates the
improper use of perjured testimony.
.Assuming without deciding that Mammolito’s testimony
was perjurious for failing to disclose the agreement not to
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prosecute him, there is no likelihood that the jury was mislead
because he admitted to the true facts during cross-examination.
The remaining allegations regarding Mammolito’s testimony
were discussed in Part II(B) and will not be delved into further.
K. Failure to Give Special Instruction Regarding Accomplice
Testimony
Petitioner contends the trial court erred in failing to give
his proposed instruction that advised the jury to carefully
consider Mammolito’s testimony and that it was for the jury to
decide whether Mammolito’s testimony was influenced in any
way by the prosecutor’s agreement not to charge him with
crimes or to otherwise curry favor from the government. The
jury was read a general instruction regarding credibility, which
told the jury that in assessing a witness’ credibility it could
consider, inter alia, “any interest, bias or prejudice the witness
may have... And any other matter that has a tendency in
reason to prove or disprove the truthfulness of the testimony of
the witness.” Legal File at 23 (Jury Instruction No. 1, 43).
Instructional error generally arises under state law and
for that reason is not cognizable in a habeas proceeding absent
violation of a specific constitutional guarantee. Here, Petitioner
raises no constitutional issues, so his claim is not cognizable.
L. Failure to Suppress Heldebrand’s Identifications
This issue was fully address in Part II(C) and further
discussion is not required.
M. Failure to Present Alibi Witnesses or Call Petitioner to
Testify
This issue was fully addressed in Part II(E) and further
discussion is not required.
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N. Admission of Hearsay
Petitioner contends that Sharon Dugan’s testimony that
Gary Engel told her the ring he gave her came from a person
“they” kidnaped in Kansas City was inadmissible hearsay. The
Court will accept, for the sake of argument, that the hearsay (for
that is what it is) was not admissible under the co-conspirator
exception. Nonetheless, the claim is rejected because (1) the
claim was procedurally defaulted and (2) any error was
harmless.
The issue was raised in a motion in limine, which was
denied. No objection was made at trial, but the issue was
reasserted in post-trial motions and on appeal. The Missouri
Court of Appeals declined to review the issue, holding that
“(where no objection is made, the admission of hearsay
evidence is not plain error.” Manning, slip op. at 14.
Petitioner attempts to avoid the procedural default by
arguing that his appellate counsel was ineffective for failing to
argue that the motion in limine was sufficient to preserve the
issue for review. Petitioner’s premise about this argument’s
validity is flawed. Rulings on motions in limine are
interlocutory and preserve nothing for review. E.g., State v.
Woods, 639 S.W.2d 818, 820 (Mo. 1982); State v. Hemphill,
669 S.W.2d 633, 635 (Mo. Ct. App. 1984). The case upon
which Petitioner relies observed the “general requirement” that
an objection be made at tria! in order to preserve a claim of
error, but held the general rule was not applicable because the
parties “agreed that in the interest of clarity and judicial
economy, the trial court would take the motion to suppress
along with the case.” State v. Ross, 680 S.W.2d 213, 215 (Mo.
Ct. App. 1984). There is no basis for invoking that exception
here.
In any event, the error (if any) was harmless. Dugan
ww
A-51
testified that Engel gave her the ring, and Ford identified the
ring as his. Mammolito also testified about the incident in
-which Engel took the ring from Ford, as well as Engel’s
involvement in the kidnaping. All of this testimony was
admissible. The only additional fact gleaned from Engel’s
statement is the edmission that some unidentified “they”
kidnaped a someone in Kansas City and took his ring. This
statement does not implicate Petitioner because he was not
named, so its admission was harmless.
Petitioner also challenges the admission of the ring, but
(1) this claim was procedurally defaulted and (2) this issue
raises a question of state evidentiary law that is not cognizable
in a habeas proceeding. This claim is rejected.
O. Actual Innocence
In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme
Court pointed out that “[c]laims of actual innocence based on
newly discovered evidence have never been held to state a
ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state
criminal proceeding.” 506 U.S. at 400. Although actual
innocence plays a role in habeas proceedings, it does so long as
a supplement to a constitutional claim - not as an independent
claim. Id. at 404. This distinction was emphasized in Schlup;
a free-standing claim of actual innocence is governed by
Herrera, whereas a claim of actual innocence used to
demonstrate cause and prejudice to overcome a procedural bar
to federal review is governed by a different standard (as later
announced in Schlup). 513 U.S. at 315-17. The Court went on
to explain the different standards as follows:
If there were no question about the fairness of
the criminal trial, a Herrera-type claim would
have to fail unless the federal habeas court is
A-52
itself convinced that those new facts
unquestionably establish [petitioner’s]
innocence. On the other hand, if the habeas
court were merely convinced that those new
facts raised sufficient doubt about [petitioner’s]
guilt to undermine confidence in the result of
the trial without the assurance that the trial was
untainted by constitutional error, [petitioner’s]
threshold showing of innocence would justify a
review of the merits of the constitutional claims.
Schlup, 513 U.S. at 317.
Subsequent Eighth Circuit opinions do not make clear
whether Herrera (1) completely bars free-standing claims based
on actual innocence or (2) merely erects an extremely high
standard for such claims. Herrera was decided in 1993, and
Schlup was decided in 1995. Four months after Schlup was
decided, the Eighth Circuit cited it for the proposition that a
free-standing claim of actual innocence is cognizable and relief
can be granted only if the new facts “unquestionably establish
[the petitioner’s] innocence.” Allen v. Nix, 55 F.3d 414, 417
(8th Cir.), cert. denied, 516 U.S. 1014 (1995) (quoting Schlup,
513 U.S. S.Ct. at 317). Later, in Meadows v. Delo, 99 F.3d 280
(8th Cir. 1996), the Eighth Circuit was again presented with a
free-standing claim of actual innocence and characterized
Herrera as “reject[ing] free-standing claims of actual innocence
as a basis for habeas review,” and held that a “claim of
innocence based on newly discovered evidence is not
cognizable on habeas review.” 99 F.3d at 283. Finally, in
Cornell v. Nix, 119 F.3d 1329 (8th Cir. 1997), the Eighth
Circuit relied on Allen and subjected a free-standing claim of
actual innocence to the “unquestionable innocence” standard.
119 F.3d at 1334.
Resolution of Petitioner’s claim is easy if the claim is
A-53
not cognizable: if it is not cognizable, no relief can be granted.
However, the law in this circuit is not clear, and the Court notes
that Cornell and Allen have been cited with greater regularity
than Meadows. Consequently, it is prudent for the Court to
consider Petitioner’s claim under the standard described in
Cornell and Allen. This, too is an easy matter: having failed to
satisfy the lesser Schlup standard, Petitioner cannot satisfy the
higher standard described in Cornell and Allen.
Ill. CONCLUSION
For the foregoing reasons, Petitioner’s application for a
Writ of Habeas Corpus is denied.
IT IS SO ORDERED.
\s\
ORTRIE D. SMITH, JUDGE
DATE: 4/17/01 UNITED STATES DISTRICT COURT
A-54
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
STEVEN L. MANNING,
Petitioner,
Vv. Case No. 97-0336-CV-W-3
)
)
)
)
)
)
MICHAEL BOWERSOX and ) a.
JEREMIAH (JAY) NIXON, )
)
Respondents. )
ORDER DENYING PETITIONER’S MOTION T
ALTER OR AMEND JUDGMENT
Petitioner’s Motion to Alter or Amend (Doc. #91) is
denied.
IT IS SO ORDERED.
\s\ Ortrie D. Smith
ORTRIE D. SMITH, JUDGE
UNITED STATES DISTRICT COURT
DATE: June 18, 2001
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A-55
IN THE
MISSOURI COURT OF APPEALS
WESTERN DISTRICT
STATE OF MISSOURI,
Respondent,
¥.
WD 45206
STEVEN L. MANNING,
Appellant, (Consolidated with WD4841 1)
STEVEN L. MANNING, August 23, 1994
Appellant,
V.
)
)
)
)
)
)
)
)
)
)
)
) Order Filed:
)
)
)
)
)
)
)
STATE OF MISSOURI, )
)
)
Respondent.
MEMORANDUM IN SUPPORT OF ORDER
This memorandum is for the parties’ information and
sets forth the reasons for the order affirming judgment.
Steven L. Manning appeals his convictions, following
ajury trial on January 22-24, 1992, of two counts of kidnapping
and two counts of armed criminal action. The trial court
declared Manning to be a prior offender and sentenced him to
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two life sentences for the kidnapping charges and two 50 year
sentences for the armed criminal action charges. Manning
asserts several contentions of error on appeal. He contends that
the trial court committed plain error in admitting the testimony
of an accomplice’s ex-wife, admitting into evidence a bugging
device seized from an accomplice’s apartment, and submitting
the reasonable doubt instruction patterned after MAI-CR3d
302.04. He also claims the trial court erred in refusing to
instruct the jury that the testimony of accomplices must be
carefully scrutinized and in overruling his objection to the
state’s closing argument.
Further, he appeals the denial of his Rule 29.15 motion
for postconviction relief. He asserts that he was denied
effective assistance of counsel because his attorney failed to (1)
file a motion to suppress the identification testimony of the
kidnapping victim’s sister, Carolyn Heidebrand, (2) allow
Manning to testify, (3) present an alibi defense for Manning,
and (4) file a motion to suppress Manning’s statements to
Sylvia Herrera in a letter arranging an alibi. He also asserts that
his postconviction counsel failed to properly investigate his case
to discover the allegation raised in the supplemental amended
motion. Finally, he contends that the motion court clearly erred
in denying his 29.15 motion because it failed to conduct any
inquiry as to whether the lateness of Manning’s motion resulted
from the actions of counsel or Manning. We affirm the trial
court’s judgment and the denial of Manning’s Rule 29.15
motion. |
FACTS’
Charles Ford was a drug dealer who owned The Irish
lWe view the evidence in a light most favorable to the
jury’s verdict.
A-57
Crook Tavern at 5" and Walnut in Kansas City. Anthony
Mammolito’s wife owned Jaime’s Lounge across the street.
Mammolito knew Ford. Ford’s brother-in-law, Goldyn,” was a
frequent patron of Jaime’s Lounge. Goldyn told Mammolito
that he thought Ford was worth a lot of money and had access
to $200,000 to $250,000 because of his drug dealings.
In early 1984, Mammolito went to Chicago to recruit
individuals to help him kidnap Ford. Mammolito went to the
house of a former fellow prison inmate, Thomas McKillip, and
asked McKillip’s help in kidnapping Ford. McKillip made a
telephone call. About 15 to 20 minutes later, Manning showed
up at McKillip’s house. After discussing the kidnapping plans,
Manning recruited Gary Engel to help with the kidnapping. The
next night, Manning, Engel, McKillip and Mammolito met at
Engel’s house and discussed the kidnapping. Mammolito then
returned to Kansas City.
A week or two later, McKillip drove to Kansas City and
met with Mammolito. He told Mammolito that Manning and
Engel would be flying from Chicago that night. McKillip
showed Mammolito the paraphernalia that he had brought with
him, including police radios for cars, hand-held radios, an
assortment of badges from law enforcement agencies, search
warrants, a red light, handcuffs, pistols, and a utility line
repairer’s belt. Later that night, Mammolito and McKillip
picked up Manning and Engel at the Kansas City airport.
Mammolito, McKillip, Manning and Engel began
following Ford. They followed him to the airport and watched
him board a plane. They later learned that Ford’s mother-in-law
had died and that Ford was traveling to attend her funeral.
Because nothing could be done until Ford returned, Manning
?The record reflects no more identity than this.
A-58
and Engel went back to Chicago.
Manning and Engel returned to Kansas City a couple of
days later. Mammolito and McKillip dropped Manning and
Engel off in the Fairfax area of Kansas City, Kansas, for the
purpose of stealing a car to use in the kidnapping in the
meantime, Mammolito and McKillip went to the house of
Ford’s sister, Carolyn Heldebrand, to plant a bugging device on
Heldebrand’s telephone. McKillip put on the utility line
repairer’s belt and a “Ma Bell” identification and climbed a
telephone pole across the street. McKillip attached a bugging
device to Heldebrand’s telephone line. An FM radio could pick
up the device’s signal.
Later Mammolito, McKillip, Manning and Engel met at
a “safe house.” While there, they installed a red light, police
radios, a police scanner and an antenna to a Car stolen by
Manning and Engel. They then began watching Ford’s
apartment in Kansas City. Manning and Engel were in the
stolen vehicle in one parking lot, and Mammelito and McKillip
were in Mckillip’s car in another parking lot.
Ford and a friend, Mark Harris, arrive at the apartment
at about 2:30 to 3:00 A.M. As they were getting out of Ford’s
truck, Manning and Engel ran up to them displaying badges and
guns and yelling that they were DEA agents and that Ford and
Harris were under arrest. Ford and Harris were told to face the
truck and to put their hands on the truck as Manning and Engel
searched them. They took a gun from Ford’s pants. They
handcuffed Ford and Harris and placed them in the back seat of
the stolen car. They placed duct tape over Ford’s and Harris’
eyes.
Manning and Engel drove the stolen car with Ford and
Harris in it. McKillip drove Ford’s truck, and Mammoiito
drove McKillip’s car back to the “safe house.” Once there,
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Ford and Harris were handcuffed to a pole in the garage.
Mammolito avoided Ford because Ford knew him and knew his
voice. One of the kidnappers informed Ford that there was a
contract on his life, and that someone had offered $100,000.
Ford told them that he did not think he could come up with
$100,000, but the kidnappers told him to come up with what he
could.
The kidnappers allowed Ford to make some phone calls
to raise money. They planned to pick up any money Ford could
raise at Heldebrand’s house. Heldebrand gathered $5000 and
put it into a sack. Ford’s friends went to Ford’s apartment and
picked up a briefcase full of money and dropped it off at
Heldebrand’s house.
Manning drove Ford’s truck to Heldebrand’s house to
pick up the money.’ Heidebrand handed him a sack of money.
When he returned to the safe house, Manning was angry about
the small amount of money in the sack, and he threatened to kill
Ford and Harris. He hit Harris with a pipe. Ford called his
sister and told her that she had forgotten the briefcase full of
money. Manning went back to Heldebrand’s house and picked
up the briefcase.
In total, the kidnappers received about $30,000 to
$50,000. They informed Ford that they would be back in about
30 days to collect the rest of the money. They divided up the
money and left a 10 percent share in the freezer of the safe
house for the tipster, Goldyn. Engel also took one of Ford’s
rings.
3Heidebrand testified that only one man came in the
truck to pick up the money. Mammolito testified that he and
Manning went to Heidebrand’s house to pick up the money.
~ ll al. i ll ee om Am Am
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The kidnappers then put Ford and Harris in a car, and
Manning and Engel drove them to a cemetery on Blue Ridge.
They removed the handcuffs on Ford and Harris but bound their
hands with duct tape. They told Ford and Harris to sit down for
a while before trying to get loose. They left Ford’s truck
nearby. Manning and Enge! drove away and headed to Kansas
City International Airport to return to Chicago.
Ford and Harris removed the duct tape and drove Ford’s
truck to Ford’s bar. They did not immediately seek police help
because of Ford’s drug dealings and because they were
concerned that the kidnappers would return in 30 days. Ford
acknowledged the kidnapping to police in 1990, when he was
negotiating a guilty plea to a drug charge.
In early 1984, a Southwestern Bell Telephone Company
technician removed a bugging device from a telephone pole
near Heldebrand’s house. The Federal Bureau of Investigation
found a similar device in Engel’s apartment in Chicago in
August 1990.
In February 1984, Lillian Schoenberger’s car, a 1984
Chevrolet Caprice, was stolen from the Fairfax area of Kansas
City, Kansas. Police found the car on July 12, 1984, at Kansas
. City International Airport. A key was jammed in the car’s H
ignition, and a hole, which could have facilitated an antenna or i
similar device, had been cut in the car’s rear quarter panel.
In 1986, an FBI agent searched a storage locker
belonging to Manning in Chicago. He found a paper with
McKillip’s name on it, two or three Illinois identification
documents, a Minnesota driver’s license, a Chicago police
uniform badge, a Cook County Sheriff's Department badge, a
document with Manning’s picture and the name Steve
Rosenbloom on it, assorted documents with other people’s
names on them, a document with Harris’ name on it and
. al — ae - = —_ ae lle
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descriptive information about him, a telephone bugging device,
a police-type transmitter and receiver, and a portable antenna.
Manning admitted that the items belonged to him.
Buffalo Grove, Illinois, police received a ring from
Sharon Dugan, Engel’s ex-wife. Dugan testified that she took
Engel to the airport two times in 1984 so that he could travel to
Kansas City. When she picked him up at the airport after his
second trip to Kansas City, Manning was with Engel. Engel
gave her a ring and told her that he had gotten it from a person
they had kidnapped in Kansas City. Dugan turned the ring over
to law enforcement officers. Ford identified the ring as the one
taken from him during the kidnapping. Dugan also testified that
she overheard Engel and McKillip talking about going to
Kansas City and acting as DEA agents to rip off drug dealers.
In June 1990, Heldebrand identified Manning in a
photograph lineup as the man who picked up the ransom
money. She also identified Manning at trial. Heldebrand,
however, was unable to identify appellant at a deposition at
which he was present or at the first trial.‘
Sylvia Herrera testified at trial that she knew Manning
through her boyfriend, Tommy Dye, who asked her in late 1990
i to help provide Manning an alibi for certain dates in February
i 1984. Herrera saw Manning in jail, spoke to him on the
telephone, and received letters from Manning. Herrrera went to
a library and got copies of the Sum Times newspaper for
Manning so that he could review what movies and events
occurred during the period in question. Manning asked Herrera
for information about her family. He instructed her to say that
Manning was with her family during the days in which the
kidnapping occurred and that they went to movies and did other
‘The first trial ended in a mistrial.
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things together. Manning told Herrera that she and her family
would be paid thousands of dollars for providing him with an
alibi.
Identification Testimony
In his first point on appeal, Manning asserts that his
attorney was ineffective for failing to move to suppress
Heldebrand’s in-court and out-of-court identifications.
Manning complains that the photo lineup from which
Heldebrand identified him was unduly suggestive and
Heldebrand’s identification was unreliable. We disagree.
To establish ineffective assistance of counsel, Manning
must show that his attorney did not exercise the customary skill
and diligence a reasonably competent attorney would have
exercised and that this prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). We presume
Manning’s attorney to have been competent and that the
deficiencies complained of were soun‘ trial strategy. Jd. ; State
v. Stepter, 794 S.W.2d 649, 656 (Mo.banc 1990). Our review
of a motion court’s denial of a Rule 29.15 motion is limited to
determining whether the findings, conclusions, and judgment of
the motion court were clearly erroneous. State v. Ervin, 835
S.W.2d 905, 928 (Mo.banc 1992), cert. denied, US.__,
113 S.Ct. 1368 (1993). We will deem the findings and
conclusions of the motion court to be clearly erroneous only if
we are left with a definite and firm impression that a mistake
has been made. /d.
“To demonstrate a counsel’s ineffectiveness in failing to
seek suppression of evidence, a defendant must establish that
his claim is meritorious and ‘that there is a reasonable
probability that the verdict would have been different absent the
excludable evidence in order to demonstrate actual prejudice.””
State v. Neal, 849 S.W.2d 250, 258 (Mo.App. 1993) (citing
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Kimmelman v., Morrison, 477 U.S. 365, 375 (1986)). We will
not deem counsel to have been ineffective for failing to file a
meritless motion or for failing to object to admissible evidence.
State v. Hunter, 840 S.W.2d 850, 870 (Mo.banc 1992), cert.
denied, _U.S.__, 113 S.Ct. 3047 (1993); State v. Twenter,
818 S.W.2d 628, 643 (Mo.banc 1991).
Manning claims that because his photograph was in two
different photographic arrays and his photograph was the only
one in both arrays, the photographic lineup shown to
Heldebrand was unduly suggestive. This same contention was
rejected in State v. Garrett, 825 S.W.2d 954 (Mo.App. 1992),
in which the court concluded, “Defendant’s contention that
because the defendant was the only person in the lineup whose
photograph was among the six photographs previously
displayed to [the witness] maybe an appropriate jury argument
challenging the reliability of her identification. It is not,
however, impermissibly suggestive”. Jd, at 958. Manning’s
contention is without merit.
Manning also assets that Heldebrand’s identification
was inherently unreliable. Heldebrand admitted at trial that she
looked only at the man who came to pick up the ransom money
“somewhat” and that she tried not to stare at him. Further,
although she identified Manning in the photographic lineup and
at the second trial, she was unable to identify Manning at the -
first trial or at a deposition at which she sat across the table
from him for a couple of hours.
Manning’s trial counsel testified at the Rule 29.15
hearing that he wanted to have Heldebrand testify at trial
because her testimony conflicted with Ford’s and Mammolito’s
testimony and because she had not been able to identify
Manning at the deposition. Allegations of ineffective assistance
of counsel relating to matters of trial strategy do not provide a
basis for postconviction relief. Rainwater v. State, 770 S.W.2d
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368, 370 (Mo.App. 1989). Counsel is allowed wide latitude in
conducting a defense and may use his best judgment in matters
of trial strategy. Stuckey v. State, 756 S.W.2d 587, 593
(Mo.App. 1988). Whether or not to file a motion to suppress is
a matter of trial strategy left to counsel’s determination. State
v. Sanders, 539 S.W.2d 458, 461 (Mo.App. 1976). We agree
with the motion court that trial counsel’s decision to allow
Heldebrand to testify was a valid trial strategy calculated to aid
the defense and did not demonstrate any ineffectiveness.
Allowing Manning to Testify
Manning complains that the motion court erred when it
denied his Rule 29.15 motion because he established that his
trial attorney was ineffective for not allowing him to testify at
trial. Manning asserts that he was ready to testify, but he was
not permitted to do so. We disagree.
At trial, the trial court addressed the issue with
Manning:
os
THE COURT: The State has indicated at this time that
they intend to rest their case. And in that regard your attorney
will have the opportunity to present evidence on your behalf.
And you understand that?
[MANNING]: Yes, I do.
THE COURT: And do you understand that one of the
rights which you have is the right not to take the witness stand
and not to testify.
[MANNING]: Yes, I do.
THE COURT: And do you understand if you elected to
waive that right and to take the witness stand in this case, that
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any statement which you made in response to a question which
might be asked by your attorney or which you might volunteer
or which [the prosecutor] might ask you about could serve to
incriminate or be harmful to your position in this case, you
understand that?
[MANNING]: Yes, I do.
THE COURT: And you also understand if you do not
take the witness stand that [the prosecutor] will not have the
right to comment to the jury nor will the jury to [sic] draw any
inference of guilt from your failure to testify, do you understand
that?
[MANNING]: I believe that’s right. I agree.
THE COURT: And furthermore, without discussing
with me what you may have talked with your attorney about, are
you satisfied that [your attorney] has called those persons and
have them available for you in this case that you believe are
important to your position?
[MANNING]: I’m satisfied with my representation, yes,
Iam.
THE COURT: Well, I’m not asking you about whether
you’ re satisfied with the way you’ ve been represented. I’m only
asking you at this point in time whether you’re satisfied that
whoever you have asked him to call on your behalf he has in
fact called or followed your instructions in that regard.
[MANNING]: Yes, he has.
THE COURT: In other words, I want to know whether
there has in that connection the calling of the witnesses whether
it has been any refusal [by your attorneys] to subpoena or call
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someone on your behalf.
[MANNING]: Everything is fine. No refusal.
Everything has been done correctly.
Manning’s attorney testified at the Rule 29.15 hearing that the
decision on whether or not Manning would testify was entirely
Manning’s decision.
The trial court advised Manning of his rights regarding
the right to testify and asked him if his attorney had called all
the persons who Manning believed were important to his case.
Manning told the trial court that he was satisfied with his
attorney’s handling of his case. Nor did Manning make any
objection to the court abou: wanting to testify throughout the
court’s discussion with him.
“In determining the issue of ineffective assistance of
counsel, the motion court is free to believe or disbelieve
evidence, whether contradicted or undisputed.” State v.
Buchanan, 836 S.W.2d 90, 93 (Mo.App. 1992). Unless our
review of the entire record leaves us with a definite, firm
impression that the motion court was mistaken in its
conclusions, we must affirm its judgment. State v. Anderson,
785 S.W.2d 596, 600 (Mo.App. 1990). We discern no basis for
reversing the motion court.
Alibi Defense
Manning asserts that his trial attorney was ineffective
for failing to call Corine Robin as an alibi witness. During the
first trial, Robin testified that she lived with Manning and his
girlfriend in January and February 1984 and that she did not
have any knowledge of Manning’s leaving Chicago during that
time.
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Manning’s trial counsel testified at the Rule 29.15
hearing that he did not call Robin during the second trial
because she had told his investigator that her husband was
secretly held by the government and drugged to learn secrets
about the Russian government. Manning’s attorney stated that
he had serious concerns at that point about Robin’s ability to
recall and relate information.
If an attorney believes that a witness’ testimony would
not be helpful to his client’s position, the decision not to call
her is a matter of trial strategy and will not support a Rule 29.15
motion for postconviction relief. Laws v. State, 708 S.W.2d
182, 187 (Mo.App.), cert. denied, 479 U.S. 871 (1986).
Manning’s attorney was aware of the potential risks and
benefits of calling Robin as a witness and made a strategic
decision not to call her. Manning represented to the court at
trial that his attorney had called all the witnesses he wanted
called. We conclude that the attorney’s decision not to call
Robin as a witness was a matter of trial strategy which was
appropriate under the circumstances and did not demonstrate
ineffectiveness.
Manning’s Letters to Sylvia Herrera
Manning asserts that the motion court committed plain
error in denying his Rule 29.15 motion because his trial counsel
was ineffective for failing to file a motion to suppress
Manning’s statements to Herrera in a letter which he had
written her arranging a false alibi defense. Manning contends
that the statements were the “fruit of the poisonous tree”
because the statements to Herrera were made as a result of a
state informant, Tommy Dye, being planted in the Cook County
Jail. Manning’s Rule 29.15 motion stated:
The evidence introduced as a result of an agent working
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for the government being planted in the Cook County Jail for
the purposes of soliciting information which could later be used
against movant. Movant was prejudiced because evidence was
introduced at trial that movant discussed falsifying an alibi
which resulted from the contact by the government’s
undercover agent. Had trial counsel filed said motion the issue
of whether the evidence was legally obtained or was the “fruit
of the poisonous tree” could have been litigated prior to trial
and there is a reasonable probability that the evidence would
have been found to be inadmissible or alternatively, if the trial
court had overruled the motion to suppress, the issue could have
been preserved for appellate review.
The record shows that Manning’s attorney did file a
motion in limine to suppress the evidence. The motion, styled
“Defendant’s Motion in Limine Regarding Alleged Attempt to
Fabricate Alibi Defense,” was filed on October 8, 1991. The
trial court denied the motion before the first trial. The state
filed a response to the motion in limine prior to the second trial,
and Manning’s attorney renewed the motion in limine at the
second trial. No pretrial evidentiary hearing was held, but the
trial court took the motion with the case. When Herrera was
called to the stand and testified about the letter, Manning did
not object to the letter on the ground that it was the fruit of the
poisonous tree.
As previously stated, to prevail on a claim of ineffective
assistance of counsel, Manning must establish his attorney
failed to use the customary skill a reasonably competent
attorney would have used in similar circumstances, and he was
prejudiced thereby. Sanders v. State, 738 S.W.2d 856, 857
(Mo.banc 1987). Both prongs must be satisfied, and this court
is free to examine the prejudice prong first. Jd.
We find no prejudice. To establish that an attorney was
ineffective for failing to file a motion to suppress, a defendant
A-69
must show that his claim is meritorious and that a reasonable
probability exists that the verdict would have been different
absent the excludable evidence. Neal, 849 S.W.2d at 258.
Even if the letter to Herrera should have been suppressed, and
we do not so conclude, ample evidence was presented to the
jury from which they could have concluded that Manning was
guilty of the charged offenses beyond a reasonable doubt.
Testimony of Sharon Dugan
Manning alleges that the trial court committed plain
error in allowing Dugan to testify that Engel had given her a
ring and told her that he had acquired the ring from someone he
had kidnapped in Kansas City. Manning asserts that this
testimony was hearsay and violated his nghts to confront and
cross-examine the witnesses against him, to a fair trial and to
due process of law.
We fail to discern evident, obvious and notorious error
in admitting this testimony, as we must do to accord plain error
review pursuant to Rule 30.20(b). State v. Bailey, 839 S.W.2d
657, 661 (Mo.App. 1992). Where no objection is made, the
admission of hearsay evidence is not plain error. State v. Lewis,
809 S.W.2d 878, 879 (Mo.App. 1991).
Accomplice Instruction
Manning contends that the trial court erred in refusing
to instruct the jury that the testimony of accomplices must be
carefully scrutinized. He asserts that the testimony of his
alleged accomplice, Mammolito, was essentially
uncorroborated as to Manning’s complicity in the charged
offenses. Manning offered jury instruction number A which
Stated:
You have heard testimony from Anthony Mammolito
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who stated that he participated in the crime charged against
defendant. His testimony was received in evidence and may be
considered by you. You may give his testimony such weight as
you think it deserves. Whether or not his testimony may have
been influenced by his desire to please the government or to
strike a good bargain with the government about his own
situation is for you to determined.
The trial court gave the jury the general credibility
instruction, MAI-CR3d 302.01. It is well settled that a trial
court does not err in declining to submit an additional
instruction on witness credibility beyond MAI-CR3d 302.01.
State v. Wright, 751 S.W.2d 48, 53 (Mo.banc 1988). Manning’s
contention is without merit.
Prosecutor’s Closing Argument
Manning further asserts that the trial court erred in
allowing the prosecutor to argue scare tactics to the jury in his
closing argument. We disagree.
Although Manning objected to the prosecutor’s closing
argument at trial, he objected on grounds different from that
which he now asserts on appeal. Hence, Manning asks that if
his objection was not sufficient to preserve the issue for appeal
then we review for plain error. A point raised on appeal must
be based upon the theory of objection raised at trial. State v.
Foulk, 725 S.W.2d 56, 69 (Mo.App. 1987). We conclude that
Manning did not preserve the issue for appeal and that the
alleged error does not constitute evident, obvious and notorious
error. See Bailey, 839 S.W.2d at 661. A claim of plain error
based on matters contained in arguments rarely justifies relief
on appeal, unless the argument had a decisive effect on the jury.
State v. Schlup, 785 S.W.2d 796, 802 (Mo.App. 1990).
In his closing argument, the prosecutor stated:
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. . .Find the defendant guilty. He came down from
Chicago and committed an offense not just against Charlie Ford
and Mark Harris but against Clay County.
Tell him that Clay County does not-—
[MANNING’S ATTORNEY]: Objection, Your Honor,
the laws in Clay County are not different than any place else in
the country.
THE COURT: Overruled. Proceed.
[PROSECUTING ATTORNEY]: Tell him Clay County
doesn’t like crime. Justice has to be even-handed. When the
evidence is presented we don’t shirk from our responsibility.
Proof beyond a reasonable doubt will convict. You don’t send
the defendant a message that you like drugs, that you like
Charlie Ford, that you like Mark Harris; you send him the
message that you do crime in Clay County, you’re going to be
held accountable. We don’t like crime.
Prosecutors may argue the prevalence of crime in the
community, the personal safety of its inhabitants, the jury’s duty
to uphold the law, and inferences from its failure to convict.
Such pleas call upon common experience. State v. Schwer, 757
S.W.2d 258, 264 (Mo.App. 1988). “A prosecutor may
legitimately argue that the jury shouid ‘send a message’ that
criminal assault will not be tolerated or should be severely
punished.” State v. Cobb, 875 S.W.2d 533, 537 (Mo.banc
1994). In this case, the prosecutor’s argument urged stricter law
enforcement’ it did not appeal, as Manning suggests, to the
jurors’ passions and prejudices. We conclude that the
prosecutor’s comments did not have a decisive effect on the
jury so as to rise to the level of plain error. Manning’s point on
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appeal is denied.
The Bugging Device
Manning contends the trial court committed plain error
in admitting into evidence the bugging device seized from
Engel’s apartment. Manning asserts that any probative value
the evidence had was outweighed by its prejudicial effect. We
fail to discern evident, obvious and notorious error in admitting
this evidence. See Bailey, 839 S.W.2d at 661.
A trial court is vested with broad discretion in ruling on
questions of relevancy of evidence and, in the absence of a clear
showing of an abuse of discretion, we will not interfere with the
trial court’s ruling. State v. Ramsey, 820 S.W.2d 663, 667
(Mo.App. 1991). To establish an abuse of discretion, a
defendant must show that reasonable persons could not differ
as to the propriety of the action taken by the trial court. State v.
Jimerson, 820 S.W.2d 500, 502 (Mo.App. 1991).
Admission of the bugging device corroborated
Marnmolito’s testimony about the kidnapping and showed that
the kidnappers had access to bugging devices similar to that
which was used on the telephone line of the kidnapping
victim’s sister. Evidence which tends to corroborate the
testimony of a witness is admissible. State v. Powell, 793
S.W.2d 505, 507 (Mo.App. 1980). We conclude the trial court
did not plainly err in admitting the bugging device into
evidence.
Reasonable Doubt Instruction
Manning alleges that the trial court committed plain
error in submitting the reasonable doubt instruction patterned
after MAI-CR3d 4302.04. He asserts that it unconstitutionally
lowered the state’s burden of proof by equating “reasonable
A-73
doubt” with proof that leaves the jury “firmly convinced” of
guilt.
The Missouri Supreme Court has repeatedly upheld the
validity of MAI-CR3d 302.04 against identical constitutional
challenges. State v. Griffin, 848 S.W.2d 464, 469 (Mo.banc
1993); State v. Blankenship, 830 S.W.2d 1, 13 (Mo.banc 1992).
Manning’s point is denied.
The Amended Postconviction Motion
Manning asserts that the motion court clearly erred
when it denied his Rule 29.15 motion without determining
whether he was abandoned by his postconviction counsel.
Manning contends, pursuant to Sanders v. State, 807 S.W.2d
493 (Mo.banc 1991), that his counsel’s failure to file a timely
amended motion constituted abandonment and that the trial
court should have inquired into whether the untimeliness was
due to the actions of counsel or Manning. Manning requests
that we reverse the motion court’s denial of postconviction
relief and remand for a hearing pursuant to Sanders.
Manning filed his pro se Rule 29.15 motion on May 21,
1992. The court appointed counsel to assist him on August 3,
1992, and on October 26, 1992, Manning’s counsel filed an
amended Rule 29.15 motion. We agree with Manning that his
counsel’s motion was filed more than 60 days after his
appointment in violation of Rule 29.15(f). The motion court,
however, held an evidentiary hearing and ruled on the merits of
Manning’s amended motion. This court’s Southern District
dealt with this exact issue in Holt v. State, 811 S.W.2d 827
(Mo.App. 1991), and concluded:
The present record is sufficient for review of the correctness of
the trial.court’s order denying movant relief on the amended
motion. In the interest of expedition and judicial economy, this
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court reviews on the merits the point sought to be raised by
movant in his amended motion and his original brief.
Id. at 828. Manning’s point is without merit.
Ineffective Assistance of Rule 29.15 Counsel
Manning asserts that he was denied effective assistance
of Rule 29.15 counsel because his attorney failed to properly
investigate the case and to timely discover an allegation that
was raised in tne supplemental amended motion filed on the day
of the hearing out of time. Manning acknowledges that the
Missouri Supreme Court has held that there is no right to
challenge the assistance of postconviction counsel on direct
appeal of the postconviction motion. See Lingar v. State, 766
S.W.2d 640 (Mo.banc), cert. denied, 493 U.S. 900 (1989). He
asserts that he raises the allegation for purposes of “federal
preservation.”
No constitutional right to counsel exists in a
postconviction proceeding. State v. Hunter, 840 S.W.2d at 871.
Hence, no claim of ineffective assistance of postconviction
counsel can be made or reviewed. /d.
The judgments of the trial court and the motion court are
affirmed.
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UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 01-3246
Steven L. Manning, "
+
Appellant, °
* Order Denying Petition for
VS. * Rehearing and for Rehearing
° En Banc
Michael Bowersox, et al., .
*
Appellees. °
The petition for rehearing en banc is denied. The
petition for rehearing by the panel is also denied.
(5128-010199) December 31, 2002
Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit
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IN THE CIRCUIT COURT OF CLAY COUNTY,
MISSOURI SEVENTH JUDICIAL CIRCUIT
AT LIBERTY
STEVEN L. MANNING )
Movant,
; Case No. CV192-3076CC
STATE OF MISSOURI
Respondent. ‘
IN FACT
N W. AN R
On the 30th day of April, 1993, movant appeared
through his counsel, Stephen J. Harris, office of the Central
Appellate/Post Conviction Division of the Missourit State
Public Defender System. Movant was not present during the
hearing. Respondent, State of Missouri, appeared through
Brian J. Klopfenstein, Assistant Prosecuting Attorney for Clay
County, Missouri. The parties announced ready for the hearing.
The Court took judicial notice of the underlying criminal file,
State of Missouri vs. Steven L. Manning, Case No. CR191-
550F. Movant filed a Supplement to Movant's Amended
Motion under Rule 29.15 without objection. Movant filed his
deposition which was taken on March 31, 1993, at the Cook
County Department of Corrections, 2700 South California,
Chicago, Illinois. The evidence presented by both sides
consisted of the deposition testimony of Steven L. Manning; the
testimony of Cory Robin which occured at Movan't initial trial
which ended in a hung jury. Ms. Robin testified on October 8,
1991. Additionally, the Court heard evidence from Robert
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Buchan, special agent with the Federal Bureau of Investigation
in Chicago, Bobby May, Margaret Petifurd, Bob Petifurd, and
Byron Fox, attorney for Movant during both criminal trials.
Additionally, evidence was received from Movant in exhibits 1-
3 and 4a-d.
Movant offered into evidence, under an offer of proof,
the affidavit testimony of Marlies Vukelich and the proposed
testimony of Bruce Vacarro. Neither Vukelich nor Vacarro
appeared at the hearing to testify. The Respondent objected the
offers of proof and the Court sustained the State's objection.
Movant's attorney was granted until June 15, 1993, to
file his proposed Findings of Fact and Conclusions of Law.
Respondent was granted an additional fifteen (15) days to
respond after receiving Movant's proposed finding.
After considering the evidence submitted, this Court
enters the following Findings of Fact and Conclusions of Law
and Order:
Findings of Fact
1. Movant was arrested in Arlington Heights, Illinois,
on July 26, 1990, on charges filed in a complaint in Clay
County, Missouri, bearing a case number of CR191-550F.
2. On September 27, 1990, Movant was extradited to
Missouri from Illinois.
3. Once Movant arrived in Missouri, Movant retained
Byron Neal Fox to represent him as legal counsel.
4. Byron Neal Fox, along with assistant from Kathleen
Woods, represented Movant throughout the pendency of the
Clay County case. This representation included appearing at a
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preliminary hearing in Associate Division 6 in Clay County.
5. Movant informed attorney Fox of his desire to use
alibi witnesses to aid in his defense. The alibi witnesses
provided by Movant were: Marlies Vukelich, Cory Robin,
Gustave Guenthner, and Bruce Vacarro. In his deposition in
support of the Motion for relief under Rule 29.15, Movant
admitted not other names were provided to attorney Fox as
possible alibi witnesss (Manning Deposition 57).
6. At the request of Movant, attorney Fox traveled to
Chicago, Illinois in December, 1990, and interviewed Vukelich,
Robin, Vacarro, and Guenthner.
7. Movant claimed the trial counsel was ineffective for
failing to call the alibi witnesses at the second trial. During the
first trial, Cory Robin was called as a witness (1st trial Tr. 399-
416). Robin testified she was with Movant and his girlfriend in
January and February, 1984, but could not be sure of exact
dates. During the second trial, Movant informed the court there
had been no refusal on either trial counsel's part or by Ms.
Woods to subpoena or call someone on his behalf (Tr. 629).
8. Attorney Fox testified at the 29.15 hearing that he did
not choose to call Cory Robin because his investigator who
took Ms. Robin back to the airport reported a conversation
between himself and Robin. Ms. Robin told the investigator,
among other things, that her husband was secretly held by the
government and drugged to learn secrets concerning the
Russian government. Based upon the conversation Attorney
Fox did not call Ms. Robin at the second trial because of serious
concerns about her ability to recall and relate information.
9. Attorney Fox testified at the 29.15 hearing that he
chose not to call Movant's girlfriend Vukelich because he
learned from her that she had received written instructions on
A-79
how to testify or what to say. Fox indicated he did not want to
put her on the wiiness stand because of a fear the letter may be
discovered and substantially undermine the defense. State
witness Sylvia Herrera testified she was instructed by Movant
to create a false family to provide an alibi for Movant (Tr. 590-
604). If Vukelich testified and the letter was discovered, Fox
believed it would strongly corroborate the State's case
concerning the establishment of a fabricated alibi by Movant
and would seriously undermine the defense.
10. No evidence, other than the assertion of Movant,
was presented that either Guenthner nor Varacco were available
to testify at the second trial.
11. None of the Movant's alleged "alibi" witnesses
testified at the hearing of Movant on April 30, 1993.
12. Movant was originally tried on the four (4) counts
on October 8, 9, and 10, 1991 with the jury unable to reach a
verdict.
13. Respondent filed an information in lieu of
Indictment, on November 5, 1991, charging Movant with the
same offenses as before, but, also alleging Movant to be a
persistent offender under Sections 558.016 and 557.036.4
RSMo 1986.
14. At the request of Movant, his retrial was continued
from November 12, 1991, until January 22, 1992.
15. Movant was retried on January 22, 23, and 24,
1992, before a jury in Clay County, Missouri. The jury returned
a verdict finding Movant guilty of all four (4) counts of
kidnapping and armed criminal action.
16. On April 10, 1992, the trial court considered and
its ER
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overruled Movant's Motion for New Trial. The trial court
sentenced Movant to a term of Life imprisonment on each of
counts I and III and a term of 50 years imprisonment each on
counts iI and IV. The trial Court further ordered the sentences
to be served consecutively and not concurrently (Tr. 729).
17. Movant claimed attorney Fox was ineffective
because Fox did not attempt to suppress the out of court
identification of Movant by Carolyn Hildebrand. Hildebrand
was the sister of the kidnap victim Ford. Hildebrand's
testimony was that she provided the money to the person or
persons in a truck who drove to her residence to pick up the
ransom.
18. Attorney Fox took the deposition of Carolyn
Hildebrand on November 7, 1990. Movant was present in
person when the deposition occured. Ms. Hildebrand did not
identify Movant as being involved in the kidnapping and
ransom attempt on her brother during the deposition itself.
19. Hildebrand, according to the testimony of Agent
Buchan, was presented with a photo array of suspects, on June
26, 1990, to she if she coud identify any one of them as being
at her house to obtain the ransom money. The only evidence
presented as to a possible tainted photo lineup was the fact that
Agent Buchan and Sgt. Quid of the Buffalo Grove Police
Department traveled to Hildebrand's home to present the photo
lineup instead of asking a local law enforcement agency to
present the lineup. Mov:int also alleges a tainted lineup because
Agent Buchan and Sgt. Quid were out to get him and that he
filed a civil lawsuit against the Attorney General of the United
States and the Federal Bureau of Investigation.
20. Agent Buchan testified at trial that Hildebrand
identified Movant two (2) seperate times as someone she
recognized or could identify from the photographs provided by
ae ors eer nos = vere
A-81
Agent Buchan (Tr. 536-538). Hildebrand testified the person
she identified was the driver of the vehicle who came and
picked up the ransom money (Tr. 505).
21. At the second trial of Movant, Hildebrand, in court,
identified Movant as being the driver of the truck who came to
her house and picked up the collected ransom amounts (Tr.
521).
22. Movant requested his trial counsel file a motion to
suppress the photo identification by Hildebrand of Movant.
Attorney Fox testified at the 29.15 haring that he wanted to
have Hildebrand testify at trial because her testimony conflicted
with testimony of other State's witnesses including her own
brother Ford and witness Mammolito as to the series of events
involving the collection of moneys. Attorney Fox also testified
he thought about subpoenaing Hildebrand to ensure her
availability at trial so that he could cross examine her as to
recollection of events.
23. Movant asked trial counsel as to file a motion to
suppress evidence seized, pursuant to a federal search warrant,
on March 13, and 14, 1986 at locker 38, Building B; U-Store-It,
Mini Storage, 903 East Algoquin Road, Arlington Heights,
Illinois. Evidence which was presented to the jury, through the
testimony of Special Agent John J. O'Rourke, from the search
of the locker included many credit cards, police identifications,
police equipment, a piece of paper bearing the name Thomas
McKillip, and McKalip with descriptive information and the
name Mark Wayne Harris with a social security number.
Additionally, Repsondent's exhibit 34 was an electronic device
used to put on telephone lines which was in a briefcase in the
locker of Movant's which was searched (Tr. 548-552). The
device recovered by the FBI agents during the search in March,
1986 was similar to a device recovered from co-defendant Gary
Engle's apartment when he was arrested in 1990 (Tr. 539), and
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a device recovered from the telephone pole near Hildebrand's
residence by George Leggio in 1984 (Tr. 454-460).
24. Trial counsel did not file a motion to supress the
introduction of evidence collected in a search of the storage
locker on March 13 and 14, 1986. At the 29.15 hearing, trial
counsel indicated he believed such a motion was meritless and
could be subject to sanctions by the Court because the search
was conducted pursuant to a warrant signed by a magistrate.
25. During the deposition of Movant, on March 31,
1993, Movant raised an additional claim of ineffectiveness of
not injecting a defense that Movant was the subject of a
government attack because he filed a civil action against the
United State's Attorney General's Office, the Federal Bureau of
Investigation including several assistant attorney generals and
several Federal Bureau of Investigation agents. Attorney Fox
testified at the 29.15 hearing that such a defense was not going
to help Movant in his defense.
26. Movant alleged ineffective assistance of counsel for
allowing members of the jury to commingle with State's
witnesses during recesses. The Court heard testimony from
Bobby May, Margaret Petifurd, and Bob Petifurd about their
recollection of how the jury commingled through the back door
of the courtroom. The Court's own recollection of the case, in
contradiction with Movant's witnesses, was the jury was always
dismissed throught the jury room and that the jury arrived and
departed from a different door than identified by Ms. May and
Mr. and Mrs. Petifurd. Movant presented no evidence from
jurors about conversations overheard from witnesses.
27. Movant claimed ineffective assistance of counsel
because the trial counsel did not attempt to suppress
conversations between Movant and a fellow Cook County jail
inmate, Tommy Dye. Movant claimed to be under the care of
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a psychiatrist who prescribed mood altering drugs. The Court
finds no conversations between Dye and Movant were admitted
into evidence during the second trial.
28. Movant claimed ineffective assistant of counsel for
failing to invoke the "witness rule" excluding witnesses who
haven't testified from the courtroom. The state's last witness,
Special Agent Gary Miller, sat through the trial and attempted
to testify. Miller's testimony was only as to a foundation
witness to lay the necessary foundation for the admission of
taped telephone conversations between Movant and witness
Herrera. The State failed to lay the necessary foundation and
the tapes were not admitted into evidence.
29. Movant claimed ineffective assistance of counsel
because he was forced to wear a security device during the trial
and attorney Fox failed to object to him wearing the device.
Movant admitted in deposition the device was placed on the
inside of his leg (Movant deposition 49). Only the bar with a
black strap of Velcro was visible on his sock and leg. (Movant
deposition 50).
30. Movant alleged counsel was ineffective for failing
to object to his characterization in the State's closing argument
as being a professional criminal. Witness Mammolito testified
during direct examiniation and cross examination that Movant
was a very professional criminal (Tr. 353, 393, 403, and 404).
The Court finds a factual basis for the statement, through the
testimony of Mammolito, which did not infer superior
knowledge on the part of the Prosecutor or, as suggested by
Movant, imply the Movant was a career criminal.
31. Movant also alleges ineffective assistance against
trial counsel because of his desire to tesify during the second
trial. Movant, in his deposition, alleges he was ready to testify
but that he was not permitted to testify. The Court inquired
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about Movant understanding his right not to testify during the
trial (Tr. 626-629). Mr. Fox indicated, while the jury was not
present, his intention to offer two (2) exhibits only.
Immediately after inquiring about Movant's right not to testify,
the Court and counsel began discussing jury instructions to be
given in the case. Mr. Fox even agreed to release the witnesses
in the case prior to the jury returning, commenting, "Sure we're
done" (Tr. 630). Movant did not make any objection to the
court about wantin to testify throughout the entire discussion in
the case. Movant, however, did indicate he was satisfied with
Mr. Fox's representation in the trial (Tr. 628). Attorney Fox
testified at the 29.15 hearing the decision on whether the
Movant would tesify was entirely the Movant's.
32. The physical evidence corroborating the testimony
of Mammolito was overwhelming all of which was consistent
with Movant's guilt. The physical evidence included Ford's
diamond ring which was recovered from co-defendent Engle's
wife in Chicago. Three similar bugging devices which were
introduced into evidence. One came from Movant's locker
which was searched in March 1986. The second bugging
device was recovered by Leggio from a telephone pole outside
the residence of Hildebrand. The third bugging device was
recovered in a search of co-defendant's residence on his arrest
in 1990 for the same charges. Additionally, testimony
regarding the automobile identified by Mammolito as similar to
the vehicle he recalled was introduced. The vehicle was stolen
from the Kansas City, Kansas in the area described by
Mammolito. The vehicle was recovered at the Kansas City
International Airport several months later, as Mammolito
believed. The weather conditions described by Mammolito of
heavy fog were corroborated by the testimony of Sarah Croke.
CONCLUSIONS OF LAW
1. The court finds that it has jurisdiction over the parties
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and said cause.
2. The Court finds that Movant's motions were timely
filed and properly verified pursuant to Missouri Supreme Court
Rule 29.15.
3. Movant must meet the two-pronged test for
ineffective assistance of counsel established in Strickland v.
Washington, 466 U.S. 668 (1984), Harry v. State, 800 S.W.2d
111 (Mo. App. 1990). First the Movant must show counsel's
performance was deficient. Additionally, Movant must also
prove that he was prejudiced by counsel's deficient
performance. To prove the deficient conduct of counsel,
Movant must show that trial counsel did not exercise the
customary skill and diligence that a reasonably competent
attorney would have exercised in similar circustances. Sanders
v. State, 738 S.W. 2d 856 (Mo. Banc 1987). A strong
presumption exists that trial counsel's conduct falls within "the
wide range of reasonable professional assistance." Beverly v.
State, 778 S.W. 2d 297 (Mo. App. 1989), State v. Bailey, 839
S.W. 2d 657 (Mo. App. W.D. 1992). In order to prevail on
ineffective assistant claims, that Movant must show that there
is a reasonable probabiltiy that, absent the alleged error, the fact
finder would have had a reasonable respecting guilt. Beverly v.
State, 778 S.W. 2d at 298.
4. Movant allegs ineffective assistance on the basis of
a failure to call four (4) separate alibi witnesses. Those
witnesses are Cory Robin, Bruce Vacarro, Gustave Guenthner,
and Marlies Vukelich. In order to prevail on a claim of
ineffectiveness for failure to call alibi witnesses, Movant must
show the witness would have testified if called, and the witness
testimony would have provided a viable defense. State v.
Twenter, 818 S.W. 2d 628 (Mo. Banc 1991). A decision by
trial counsel not to call alibi witnesses does not demonstrate a
lack of skill and competence when the witnesses’ testimony
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A-86
would have been uncertain and inconclusive regarding an alibi.
Abrams v. State, 698 S.W.2d 15 (Mo. App. 1985). Similary, if
the attorney believes the testimony of the witness would not be
helpful to the client's positon, the decision not to call him is a
matter of trial strategy. Laws v. State, 708 S.W. 2d 182 (Mo.
App. 1986).
5. Counsel for Movant testified he did not call Cory
Robin as a witness because of an intriguing story about her
husband being drugged by the government to learn secrets from
Russia. Trial counsel's concern about Robin's ability to testify
truthfully and to recall facts was a valid concern given the
information he received from his investigator. Having reviewed
her previous testimony in the first trial, Robin's testimony was
inconclusive at establishing an alibi. A trial strategy decision
to not call Cory Robin was clearly appropriate under the
circumstances and did not demonstrate ineffectiveness. Leisure
v. State, 828 S.W. 2d 872 (Mo. banc 1992).
6. Counsel for Movant testified he did not call Marlies
Vukelich as a witness because her testimony would not have
been helpful to Movant's position because of the instructions
provided by Movant to Vukelich. The State provided evidence
of an attempt to fabricate an alibi defense to the charges in
Missouri. The trial strategy decision to not call Marlies
Vukelich as an alibi witness was clearly appropriate given the
potentially damaging testimony concerning the instructions
from Movant. Leisure v. State, 828 S.W. 2d at 875.
7. Although asserting both Vacarro and Guenthner were
available to testify, neither testified at the 29.15 hearing.
Movant claimed their testimony would have provided
information regarding his whereabouts during January 1984 and
February 1984. Trial counsel indicated his conversations with
Vacarro and Guenther did not provide specific information
regarding an alibi defense. Movant offers only speculation or
A-87
conjecture as to the import of their testimony which does not
rise to the level of required prejudice to prove ineffective
assistance. Camillo v. State, 757 S.W. 2d 234 (Mo. App. 1988).
Because of their failure to appear and testify at the hearing,
despite the subpoena served on Vacarro, the Court is unable to
ascertain as to what Vacarro and Guenthner may have testified
to or the effect it may have made on the case. State v.
Patterson, 847 S.W. 2d 935 (Mo. App. E.D. 1993).
Additionally, the Court notes Movant's claim is merely that trial
counsel did not call an alibi witness rather than a claim of
failure to investigate. Movant's claim for ineffective assistance
as to the issue of not calling alibi witnesses is hereby denied.
8. Movant also claims ineffective assistance for failing
to move to suppress the photo identification by witness
Hildebrand. Movant's claim of possible taint given the time
which elapsed between the alleged crime and her identification
is without merit. Movant has the burden of adducing facts
which would indicate some sort of taint in order to present the
question of suggestiveness for decision. State v. Little, 674
S.W. 2d 541, 544 (Mo. banc 1984). Movant has failed to meet
this burden. The Court finds no facts suggesting a tainted photo
identification are present. Trial counsel indicated his desire to
have Hildebrand testify to refute various elements of the
testimony of her brother Ford and co-conspirator Mammolito.
Hildebrand actually identified Movant to court as a person
driving the truck to her house to pick up the ransom money.
Any claim of impropriety based upon a tainted lineup by the
Federal Bureau of Investigation was removed by the in court
identification by Hildebrand. Trial counsel's decision to allow
Hildebrand to testify was a valid trial strategy calculated to aid
the defense and did -not demonstrate any ineffectivness.
Movant's claim for ineffective assistance as to the issue of not
seeking to suppress the identification by Hildebrand is hereby
denied.
Fe TPO GEE Lt AGEL ALLO, LIS ”
lt PAT
A-88
9. Movant's claim of ineffective assistant for a failure
to suppress the evidence collected in a March 1986 search of a
locker which Movant admitted owning is without merit.
Special Agent O'Rourke testified in the first trial that he
obtained a federal search warrant to search the premises (1st Tr.
42). Agent O'Rourke testifed at the second trial the Movant
admitted the police uniforms, equipment, and documentation
were his (Tr. 554). Any motion to suppress would have been
without merit and there was no prejudice to Movant in his
counsel's omission to file such a motion. State v. Strickland,
609 S.W. 2d 392, 395 (Mo. banc 1980); Hines v. State, 691
S.W. 2d 918, 920 (Mo. App. W.D. 1985).
10. Movant's claim of ineffective assistance for a failure
to inject a defense of ulterior motive by the government is
similarly without merit. Trial counsel was correct in electing
not to follow a trial strategy which did not advance the defense.
Any decision not to present Movant's claim that he was a victim
of a government assualt because of his filing a civil lawsuit
against the Attorney General of the United States and the
Federal Bureau of Investigation would not have been helpful
and was valid trial strategy. Leisure v. State, 828 S.W. 2d at
875. See also Camillo v. State, 757 S.W. 2d 234, 238 (Mo.
App. W.D. 1988).
11. Movant's claim of ineffectiveness of counsel as to
jury commingling presents evidence inconsistent with the
Court's recollection of events. The Court clearly recalls the jury
entering and exiting the courtroom through the jury room and
not as described by Movant's witnesses May, Petifurd, and
Petifurd. The trial court is not required to believe the testimony
of witnesses. Webb v. State, 781 S.W.2d 163, 165 (Mo. App.
1989); Harry v. State, 800 S.W. 2d 111, 115 (Mo. App. E.D.
1990). This Court does not believe the testimony of Movant's
witnesses May, Petifurd, and Petifurd. Additionally, Movant
presents no evidence as to any conversations between jurors and
A-89
state witnesses. Movant's claim for ineffectiveness regarding
jury commingling with state witnesses is denied.
12. Movant's claim of ineffectiveness of counsel for
failure to invoke "The Rule" excluding the testimony of
witnesses is also without merit. Special Agent Miller was the
last State witness who testified in the case. His testimony was
an attempt to lay a foundation for the admission of telephone
tape recorded conversations between Movant and Herrera. The
State was unable to lay the foundation and the jury never heard
the tapes. No prejudice occured by trial counsel's failure to
invoke "the Rule".
13. Movant also claimed ineffectiveness of counsel for
failing to suppress the conversations between Movant and
fellow Cook County inmate Tommy Dye. This Court finds no
prejudice attached on counsel's failure to present medical
records concerning a possible mental defense regarding Movant
and mood altering drugs. Movant admitted in deposition that
he was not insame (Manning Deposition 85). No conversations
between Movant and Tommy Dye were presented to the jury.
14. Movant's claim of ineffective assistance of counsel
concerning the security device Movant was forced to wear is
without merit. Movant made no showing of prejudice in having
to wear the device.
15. Movant also alleges ineffective assistant of counsel
for failing to object to his characterization as a professional
criminal in the State's closing argument. In order to succeed,
Movant must show that an objection would have been
meritorious and that the failure to object resulted in a
substantial deprivation of the right to a fair trial. Ruff v. State,
815 S.W. 2 460, 465 (Mo. App. E.D. 1991); Taylor v. State,
782 S.W. 2d 741, 743 (Mo. App. 1989). The record reflects on
several occasions Mammolito testified as to the professional
A-90
conduct of Movant. The State's reference to Movant being a
professional criminal was in fact part of the record and was a
reasonable inference from the evidence presented.
Characterizing Movant as a professional criminal did not infer
greater knowledge to the State and did not, as Movant suggests,
imply that he was a career criminal. The failure to object does
not demonstrate incompetence. State v. Bailey, 839 S.W. 2d
657 (Mo. App. W.D. 1992). "Any experienced trial lawyer
knows...that is not always wise to make all possible objections"
Jones v. State, 784 S.W. 2d 789, 792 (Mo. banc 1990). Finally,
Movant fails to show sufficient evidence that even if
objectionable, the comment would result in a substantial
deprivation of the right to a fair trial. Movant's claim for
ineffective assistant on this ground is denied.
16. Having considered all other claims of ineffective
assistant of counsel, the Court finds all other grounds not
specifically addressed in this Order do not provide sufficient
prejudice to grant Movant's requested relief.
ORDER
It is therefore ordered that Movant's First Amended
Motion to Vacate is hereby denied in all respects. It is further
ordered that the Clerk of Clay County, Missouri, send a
certified copy of this Order to counsel of record, the Missouri
Department of Corrections, and the Cook County Department
of Corrections.
So ordered this 11" day of August, 1993.
Frank Conley
Special Judge
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SEVENTH JUDICIAL CIRCUIT OF MISSOURI
CRIMINAL
Case: CR190-001699 FX
STATUS REPORT Date: 11/21/02
Time: 12:06:27
Oper: BNT
STATE OF MISSOURI
vs.
STEVEN L. MANNING, AKA
STEVEN T. MANNING, AKA
STEVEN P. MANNING, AKA, ETAL
DOCKET ENTRIES
07/20/90
0720/90
09/28/90
09/28/90
Probable cause shown; warrant ordered issued;
Bond set @
$7,500,000.00 CPB nig
Comes now State by assistant prosecuting
attorney ANTHONY REX GABBERT and
defendant in person, and by attorney BYRON
NEAL FOX Defendant arraigned, and waives
readling of the information to the defendant.
Defendant enters a plea of not guilty. Cause
continued to 10/09/1990 @ 9:30 a./m., at which
time the defendant is ordered to appear and be
present. JRH sjm
Bond hearing set for 9:00 o’clock in the
forenoon on the 4" day of October, 1990.
JRH.sjm
10/04/90
10/09/90
10/15/90
10/15/90
10/15/90
10/15/90
A-92
The State appears by Asst P. A. R. Gabbert &
Def. in person & by atty Byron Fox. Court
continues the bond hearing until the 9" day of
Oct. 1990 immediately following the
preliminary hearing. Def. request a move to the
general population of the jail, to which the State
offers no objection. Court advises Sheriff that
def. can be moved to general population subject
to being returned to special facilities if deemed
necessary by reason of the actions the deft. or to
provide for the general control and well being of
the jail population. JRH/sjm
Comes now State by attorney Rex Gabbert and
defendant in person and by attorney Byron Fox
and preliminary hearing is held and continued
by agreement until 10/15/1990 for further
evidence. CPBjeh
Comes now State by attorney Rex Gabbert.
Defendant in person and by attorney Byron Fox.
Probable cause shown. Defendant is bound over
Clay County Circuit Division #I for arraignment
10/15/1990. Request for bond reduction denied.
CPBjeh
Information filed. bay
Comes now state by assistant prosecuting
attorney and defendant in person and by atty
Byron Fox. Defendant arraigned, and defendant
enters pleas of not guilty. Cause set for trial the
11/26/1990 @ 9:00 am. GMph
Defendant ordered to appear for docket call on
11/21/1990 @ 9:00 am GMph
sony FORCE . 3
10/15/90
10/29/90
10/30/90
11/05/90
11/15/90
11/20/90
11/21/90
12/10/90
12/17/90
A-93
Arguments heard re motion for bond reduction.
Bond hearing cont’d to 10/29/1990 at 1:30 P.M.
GMph
Comes now St. by asst. P.A. and deft in person
and by atty Byron Fox. Evidence heard re
motion for bond reduction. Cause cont'd to
10/30/1990 at 1:15 P.M. GMph
Comes no St. by asst. P.A. and deft. in person
and by atty. Bron Fox. Further evidence heard
re motion for bond reduction. Bond reduced to
$1,000,000.00. GMph
Judge Frank Connett Jr. assigned to Div | as per
entry filed. ph
State files deposition of Carolyn I. Heidenbrand.
ph
Judge Frank Connett Jr. assigned to Div | as per
entry filed. ph
Comes now state by asst. P.A. Rex Gabbert and
deft. in person and by atty Kathy Woods. On
application of parties cause cont’d to the 14"
day of January, 1991 for trial by jury.
Defendant ordered to appear for docket cali on
01/09/1991 at 9:00 am. JRHph
Defendant file a motion for change of judge. ph
Defendant file a notice of hearing on motion for
change of judge on Dec. 21, 1990 at 9:00 a.m.
puh
01/02/91
01/09/91
01/14/91
02/19/91
04/17/91
04/19/91
A-94
Defendant’s motion for change of judge is
sustained and court requests Supreme Court
appoint a judge to hear said cause. JRHjeh
Now comes state by asst. P.A. Rex Gabbert and
the deft. in person and by attorney Kathy
Woods. Cause continued to the 02/04/1991 @
9:00 am. at which time the deft. is ordered to
appear and be present. Cause set for trial
setting. JRHdg
Order appointing Judge Frank Conley to the 7"
Judicial Circuit as per entry filed.
Cause set for trial 04/02/1991 @ 9:00 am, in
Liberty, Missouri. Jury panel of 60 jurors
ordered summoned. FC/jeh
State files motion to dismiss. jeh
Cause dismissed all as per order filed. FC/jeh
A-95
DOCKET SHEET
Division 1
2/13/03 14:29:28
File No. CR191-000550 F
Circuit Court, Clay County, Missouri
Nature of Action State of Missouri
KIDNAPPING Class A felony _Plaintiff/Petitioner
Section: 565.110 VS.
#1 STEVEN L. MANNING, AKA
#2 STEVE T. MANNING, AKA
#3 STEVE P. MANNING, AKA ET AL.
Defendant/Respondent
Count #2 [3101000] ARMED CRIMINAL ACTION - felony
Count #3 [1601000] KIDNAPPING - Class A felony
Count #4 [3101000] ARMED CRIMINAL ACTION - felony
Date Order of the Court
Mar. 20, 1991 Indictment filed; bond set $5,000,000.00;
warrant issued. JRH/bay
Mar. 21, 1991 Now comes State by Assistant P.A., John
Newberg and the Defendant in person. Cause
cont'd to the 28 day of April, 1991, at 9:00
o'clock a.m., at which time the Defendant is
ordered to appear and be present. Copy of
indictment delivered to Defendant in open court.
JRH/dg
Mar. 28, 1991 Comes now State by assistant prosecuting
attorney Ray Gohert and Defendant in person,
and by attorney Ron Partee. Defendant
Apr. 4, 1991
May 23, 1991
May 23, 1991
Jun 3, 1991
Jul 1, 1991
Jul 10, 1991
Sep 13, 1991
A-96
arraigned and waives reading of the indictment.
Defendant enters a pleas of guilty. Cause
continued to July 8, 1991 at 9:00 a.m. for trial at
which time the Defendant is ordered to appear
and be present.
Cause set for trial by jury.
Cause set for docket call on the 26 day of July,
1991, at 9:00 a.m., at which time Defendant is
ordered to appear and be present.
Defendant files motion of change of judge;
together with suggestions in support thereof. dg
State files request for discovery.
dg
Defendant motion for change of judge is
sustained and Court requests Supreme Court to
assign a judgment. JRHdg
Certified copy of Supreme Court order assigning
the Hon. Frank Conley to hear cause is filed.
mld
BRIAN KLOPFENSTEIN files entry of
appearance on behalf of State as additional
counsel. mld
Cause set for trial on Tuesday, 10/08/1991 at
9:00 am, in the Division Four courtroom of the
Clay County Courthouse. Jury Panel of 60
jurors ordered summoned. FC/jeh
State files motion for order compelling
Sep 23, 1991
Oct 8, 1991
Oct 8, 1991
Oct. 8, 1991
A-97
appearance by out of state witness. jeh
Check for out of state witness fee and three
certified copies of order and certificate mailed
this date to: Clerk of the Circuit Court, Room
801, Law Division, Richard J. Dailey Center,
Chicago, Illinois 60602. jeh
Defendant files motion to dismiss with
memorandum of points and authorities; together
with motion to limine regarding alleged attempt
to fabricate alibi defense; and motion in limine
regarding "the ring", conversations between
Gary Engel and Thomas MckKillip and
statements by Gary Engel to Sharon Dugan. jeh
APA appears. Defendant appears personally
and by counsel. Jury being present, voire dire
exam conducted. Jury selected and sworn to try
cause. Jury admonished and noon recess taken.
FCJEH
APA appears. Defendant appears personally
and by counsel. Outside hearing of jury,
argument heard on defendant's motion to
dismiss. Defendant's motion in limine regarding
the ring, argued and submitted. Motion in
limine regarding alibi defense argued and
submitted. Motion to dismiss overruled.
Separate motion in limine taken with cause.
Jury being present, jury instructed and state
makes opening statement. Defendant makes
opening statement. State adduces evidence and
cause not being concluded, jury admonished and
evening recess taken. FCjeh
Oct. 9, 1991
Oct. 9, 1991
Oct. 10, 1991
Oct. 10, 1991
A-98
APA appears. Defendant appears personally
and by counsel. Jury being present, State
adduces further evidence and cause not being
concluded, jury admonished and noon recess
taken. FCjeh
APA appears. Defendant appears personally
and by counsel. Jury being present, State
adduces further evidence and outside hearing of
jury, Court finds that defendant is a prior
offender within meaning of MoR.S. and as per
findings made of record this date. State rests.
Defendant's attorney orally moves for judgment
of acquittal. Same denied. Defendant adduces
evidence and rests. State concludes evidence in
rebuttal. All evidence closed. All witnesses
excused. Jury admonished and evening recess
taken. FCjeh
APA appears. Defendant appears personally
and by counsel. Defendant orally moves for
judgment of acquittal at close of all evidence.
Same submitted and by Court overruled. Jury
being present, jury instructed by Court.
Instructions No. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,
14, 15, 16, & 17. State makes argument.
Defendant makes closing argument. State
makes closing argument. Bailiff sworn and jury
retries at 11:00 a.m. FCJEH
APA appears. Defendant appears personally
and by counsel. Jury returns into open court at
4:00 pm and advises that they are unable to
reach a verdict and that further deliberation will
be of no benefit. Court declares mistrial and
orders jury discharged. Cause reset for trial
Oct. 30, 1991
Oct. 30, 1991
Nov. 5, 1991
Nov. 5, 1991
Nov. 5, 1991
Nov. 5, 1991
A-99
11/05/1991. Jury panel 50 jurors ordered.
FCjeh
Transcript of evidence adduced at trial and
transcript of hearing regarding Marlies Vukelich
filed. jeh
Defendant files motion to make indictmen
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