Opinion
Case No. 03-3238-RDR.
December 29, 2004
MEMORANDUM AND ORDER
This case is now before the court upon a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner proceeds pro se.
Petitioner challenges his burglary conviction arising from the state district court for Wyandotte County, Kansas. He raises three arguments: 1) that the trial judge made an improper comment regarding the evidence during the trial; 2) that the evidence was insufficient to support his conviction; and 3) that the trial court admitted evidence that was not relevant to the case. It is undisputed that petitioner has exhausted his state court remedies in this matter.
Habeas standards
A writ of habeas corpus may not be granted unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or, "was based on an unreasonable determination of the facts in light of the evidence presented at trial." 28 U.S.C. § 2254(d)(1) (2). State court factual findings, including credibility findings, are presumed correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); see also Smith v. Gibson, 197 F.3d 454, 459 (10th Cir. 1999) cert. denied, 531 U.S. 839 (2000); Baldwin v. Johnson, 152 F.3d 1304, 1317 (11th Cir. 1998) cert. denied, 526 U.S. 1047 (1999); Nguyen v. Reynolds, 131 F.3d 1340, 1359 (10th Cir. 1997) cert. denied, 525 U.S. 852 (1998).
The Supreme Court has stated that a state court decision is "contrary to" clearly established federal law "if the state court applies a rule that contradicts the governing law set forth in our cases" or if the state court "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision is an unreasonable application of federal law "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 413.
"In assessing sufficiency of the evidence, `the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'"Rojem v. Gibson, 245 F.3d 1130, 1141 (10th Cir. 2001). Generally, "federal habeas corpus relief does not lie to review state law questions about the admissibility of evidence . . . and federal court may not interfere with state evidentiary rulings unless the rulings in question rendered the trial so fundamentally unfair as to constitute a denial of federal constitutional rights." Moore v. Marr, 254 F.3d 1235, 1246 (10th Cir.) cert. denied, 534 U.S. 1068 (2001) (interior citation and quotation omitted).
The law limits the authority of the court to hold an evidentiary hearing upon petitioner's application for relief:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that — (A) the claim relies on — (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2).
Trial proceedings
Testimony was presented from Kansas City, Kansas Police Officers Jeff Jacks, Michael Golden, Michael Bowman and Michael Beadle. This testimony was that Jacks and Golden were patrolling in a police car on August 16, 1999 about 1:30 a.m., when they saw a vehicle parked behind some businesses. The vehicle was registered to petitioner. They noticed that a hole had been punched through the wall of a dry cleaning store. There was a sledgehammer nearby. They saw the legs of a person sticking out from the hole, and they observed two black males, one wearing a red t-shirt and one wearing a black t-shirt, pull that person, a black male wearing a black t-shirt, from the hole. The three black males fled as the officers approached.
Officer Golden exited the car and pursued the three men. The man who was extricated from the hole stumbled as he ran and was captured by Officer Golden. His name was Rondre Sutton. The other two men scaled a fence and entered the lot of a car dealership. They were seen entering a van. Officers Bowman and Beadle approached the van and arrested the two men who had attempted to hide under some towels inside the van. One of the men wore a black t-shirt and the other wore a red t-shirt.
Jacks and Golden identified petitioner as one of the two men standing near the hole in the wall who helped pull Rondre Sutton out as Jacks and Golden were approaching. The other man was identified as Wesley Palton.
Petitioner testified that he was driving outside the car dealership on the night in question around nine or ten o'clock when he was flagged down by a white gentleman. He stopped and was approached by police officers who arrested him. He denied being in a van and denied that he parked his car behind the dry cleaning store.
Testimony was presented that three white males were attempting to steal rims from the vehicles at the car dealership at the approximate time that the officers observed the burglary of the dry cleaning store.
No fingerprints were taken from the sledgehammer. No clothes from petitioner were identified and entered into evidence other than a pair of shoes. No white debris was identified on the shoes, although such debris was identified on other clothing articles taken from Rondre Sutton and Wesley Palton and entered into evidence. No red t-shirt was admitted into evidence.
During the testimony of Officer Golden, the prosecution introduced items of clothing which were taken from Sutton and Palton. Petitioner's trial counsel objected. The following interchange occurred when one of the exhibits, a pair of shorts belonging to Sutton, was being offered into evidence:
MR. HUNT [State's attorney]: I would move to admit State's Exhibit Number 7 into evidence.
MR. GRAUBERGER [Petitioner's trial counsel]: Again, I would object to being irrelevant and immaterial. They apply to a third party who's not a party to this —
MR. HUNT: May I respond, Your Honor?
MR. GRAUBERGER: — proceeding here today.
THE COURT: You may respond.
MR. HUNT: Your Honor, the defendant is charged by the State of Kansas with burglary. He's charged under the law of aiding and abetting. Rondre Sutton is a person that achieved penetration into the building. The defendant was assisting Rondre Sutton in doing that.
MR. GRAUBERGER: I'm going to object to that. There's no evidence that shows that whatsoever, and that is something that should be stricken.
MR. HUNT: I would rephrase it if the Court would so order.
THE COURT: Gentlemen, the jury is going to be ultimately responsible to determine what if any — what if any participation this defendant has. As you both well know, instructions will include that they are to look at this act, the actions of this man in conjunction. Now, your objection, Mr. Grauberger, I'm going to allow the State as to each of the other co-defendants to come in, because I believe that will aid. They'll have to once again determine. Instructions will cover that, but I —
MR. GRAUBERGER: Well, if it please the Court, they haven't even showed that Rondre Sutton was the man that made the hole in the wall. We have three other defendants who are burglarizing or breaking in other places and who were arrested that same evening in that same location.
THE COURT: I understand that, sir, and they'll go to it, but they have established that Mr. Sutton was inside the hole and they had to remove him by — by this gentleman and other gentlemen pulling him out. Once again, that's going to be for this jury to determine whether that rises to the level of burglary. Your objection will be noted, sir, and for the record, it is overruled.
MR. GRAUBERGER: Thank you.
THE COURT: You may proceed, counsel.
MR. HUNT: Thank you. State's Exhibit Number 7 admitted into evidence?
THE COURT: Number 7 will be received over objection of the defendant.Arguments for relief Trial judge's comments. The Tenth Circuit has stated, "Unless they amount to constitutional violations, prejudicial comments and conduct by a judge in a criminal trial are not proper subjects for collateral attack on a conviction." Brinlee v. Crisp, 608 F.2d 839, 853 (10th Cir. 1979). The court must examine the alleged judicial misconduct "in the context of the entire trial to determine whether the behavior was so prejudicial as to violate due process." Harrington v. Iowa, 109 F.3d 1275, 1280 (8th Cir. 1997). The comments at issue in this case do not amount to constitutional violations. The trial judge recognized in his comments that it was for the jury to determine petitioner's participation "if any" and whether petitioner's conduct "rises to the level of burglary." We agree with the Kansas Court of Appeals when, in deciding petitioner's direct appeal, it concluded that the comments did not reach the point of vouching for a witness, as in the case relied upon by petitioner, State v. Chappell, 987 P.2d 1114 (Kan.App. 1999). Furthermore, the trial judge instructed the jury that his rulings and remarks did not mean "to indicate any opinion as to the facts as to what your verdict should be." Therefore, we reject petitioner's first argument for relief.
Sufficiency of the evidence. Burglary is defined as "knowingly and without authority entering into or remaining within any . . . building, . . . which is not a dwelling, with intent to commit a felony, theft or sexual battery therein." K.S.A. 21-3715(b). Petitioner was convicted upon an aiding and abetting theory.
Petitioner asserts that the essential elements of the burglary charge were not proven by competent evidence. However, two witnesses testified that at 1:30 a.m., on August 16, 1999, they observed petitioner help pull Rondre Sutton from a hole in the wall of a dry cleaning store that had been made by a nearby sledgehammer. Petitioner's car was nearby. Petitioner was observed fleeing to a car lot when the police approached and was arrested as he hid in a van in the car lot. A rational person could conclude from this evidence that petitioner was guilty of aiding and abetting the burglary of the dry cleaning store. See State v. Wilkins, 7 P.3d 252, 259-60 (Kan. 2000) (discussing elements of burglary and inferring intent to commit theft from surrounding facts and circumstances). Therefore, we reject petitioner's claim that the evidence was insufficient to support his conviction.
Admission of evidence. Petitioner asserts that the trial court erred by admitting photographs and articles of clothing of Sutton and Palton. Petitioner has failed to demonstrate that the admission of this evidence rendered his trial fundamentally unfair. The evidence was relevant to proving the elements of the burglary offense and that petitioner aided and abetted two men in the commission of burglary.
Conclusion
In conclusion, for the above-stated reasons, the court shall deny petitioner's application for relief under 28 U.S.C. § 2254.
IT IS SO ORDERED.