Michael Owsley, Appellant, v. Michael Bowersox, Appellee.
No. 99-3855
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Filed: December 11, 2000
Submitted: September 13, 2000
Before HANSEN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
Michael Owsley was convicted of first-degree murder, kidnapping, and two counts of armed criminal action, and was sentenced to death. After unsuccessfully attempting to overturn his convictions in the Missouri state courts, Mr. Owsley petitioned for habeas corpus relief. The district court1 denied the petition and granted a certificate of appealability on two of Mr. Owsley‘s claims. We affirm.
Mr. Owsley claims that the state trial court violated his constitutional rights by failing to appoint substitute counsel for him. He contends first that an irreconcilable conflict arose between him and his court-appointed counsel, James McMullin, during the course of preparation for his trial. Because of this conflict, Mr. Owsley alleges that there was a complete breakdown in communications and that Mr. McMullin was thus incapable of defending him effectively. Among other things, Mr. Owsley accuses Mr. McMullin of neglecting to meet and consult with him about his defense, failing to conduct all requested investigations, speaking to him in a condescending fashion, and calling him a profane name.
When considering a habeas corpus petition, we examine the record to determine whether the relevant decision of the state courts “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” see
To obtain habeas relief, Mr. Owsley must therefore be able to point to a Supreme Court precedent that he thinks the Missouri state courts acted contrary to or unreasonably applied. We find that he has not met his burden in this appeal. Mr. Owsley‘s claims must be rejected because he cannot provide us with any Supreme Court opinion justifying his position.
Mr. Owsley refers to a few Supreme Court decisions that, at most, deal only remotely with the issues of his case. See Holloway v. Arkansas, 435 U.S. 475 (1978), and Glasser v. United States, 315 U.S. 60 (1942). These decisions concern conflicts
Mr. Owsley also contends that his constitutional rights were violated when the state trial court refused to appoint another attorney for him for the purpose of moving for substitute counsel. During the arguments on that motion, Mr. Owsley stated his reasons for asking the trial court to replace Mr. McMullin with another lawyer, and Mr. McMullin disagreed, in response, with several of Mr. Owsley‘s factual allegations. Mr. Owsley claims that Mr. McMullin‘s contradiction of his statements effectively left him without the assistance of counsel for the purposes of that motion.
Under the sixth amendment, a criminal defendant is entitled to have the assistance of counsel for all of the critical stages of his trial. See United States v. Wade, 388 U.S. 218, 226-27 (1967). To obtain relief based on a violation of the sixth amendment right to counsel, a defendant must prove, among other things, that he suffered actual prejudice. See Strickland v. Washington, 466 U.S. 668, 691-92 (1984).
The Missouri Supreme Court found that Mr. Owsley did not suffer any prejudice at the hearing on his motion, see State v. Owsley, 959 S.W.2d 789, 793 (Mo. 1977) (en banc), cert. denied, 525 U.S. 882 (1998), and our examination of the record leaves us unable to say that this conclusion was unreasonable. See
II.
Mr. Owsley also asserts that the state trial court unconstitutionally denied him the right to introduce evidence of his intoxication from alcohol and drugs. He maintains that this evidence would have tended to show that he did not have the ability to deliberate required by the offenses for which he was charged. The trial court refused to allow Mr. Owsley to call witnesses to testify about his intoxication because of
We are obliged to respect the conclusion of the Missouri Supreme Court here. A federal court conducting habeas corpus review must ordinarily refrain from reviewing any issue that a state court has already found to be defaulted on an adequate and independent state-law basis. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977); and Pollard v. Armontrout, 16 F.3d 295, 297 (8th Cir. 1994). In Missouri, it has always been the rule that to preserve a constitutional issue for review, the issue “must be raised at the earliest time consistent with good pleading and orderly procedure,” State v. Flynn, 519 S.W.2d 10, 12 (Mo. 1975); see also State v. Tygart, 673 S.W.2d 83, 87 (Mo. Ct. App. 1984). Furthermore, “the sections of the Constitution claimed to have been violated must be specified; the point must be preserved in the motion for new trial, if any; and it must be adequately covered in the briefs,” Magenheim v. Board of Education, 340 S.W.2d 619, 621 (Mo. 1960); see also State v. Sullivan, 935 S.W.2d 747, 754 (Mo. Ct. App. 1996). It is not enough that the defendant make a vague objection to a ruling that he or she does not like, and “abstract statements of law or mere assertions” do not qualify an argument for appellate review under the Missouri rules, Magenheim, 340 S.W.2d at 621.
III.
Although the district court issued a certificate of appealability for only two of Mr. Owsley‘s habeas corpus claims, he opted nonetheless to raise all of his original claims in his brief on appeal. We decline to discuss the merits of these other claims as they are not properly before us.
For the reasons indicated, we affirm the district court‘s denial of Mr. Owsley‘s petition.
Michael Owsley, Appellant, v. Michael Bowersox, Appellee.
No. 99-3855
HEANEY, Circuit Judge, dissenting.
I. EVIDENCE OF INTOXICATION
A. Preservation of the Issue
The majority holds that we cannot review the district court‘s decision on evidence of intoxication because the issue was not preserved at trial. As the district court held, however, and as is apparent from examining the trial transcript, it is clear that the issue was preserved for review. Further, the Missouri Supreme Court reviewed on the merits Owsley‘s closely related claim that jury instruction number 12, which prevented the jury from considering intoxication as it affected criminal responsibility, violated his rights.2 See State v. Owsley, 959 S.W.2d 789, 795 (Mo.1997).
The admissibility of the evidence of the intoxication was first argued during a motion in limine. During the trial, Owsley attempted to introduce the evidence, and when the trial judge again ruled it to be inadmissible, Owsley informed the judge that he did not agree with the ruling. The judge‘s response, indicating that the statute “may be unconstitutional” clearly indicates that the judge interpreted Owsley‘s disagreement as a constitutional challenge to the statute. (Tr. Vol. III at 766). Later, after an offer of proof on the intoxication issue, Owsley told the judge that he should have been
One of the reasons for requiring proper preservation of issues at trial is so that the trial court is made aware of the contested issue and will have the first opportunity to correct an error. See Murray v. Carrier, 477 U.S. 478, 487 (1986). Here, the objection was raised early in the proceedings, clearly notifying the trial court of the issue. See, e.g., State v. Barrington, 95 S.W. 235, 252 (Mo. 1906) (holding that issue is preserved “if the objections at the trial were sufficiently specific to notify the trial court at the time of the nature and character of the objections and the reasons for them.“); State v. Flynn, 519 S.W.2d 10, 12 (Mo. 1975); State v. Tygart, 673 S.W.2d 83, 87 (Mo. Ct. App. 1984). As the district court correctly held, Owsley‘s colloquy with the court sufficiently preserved the intoxication issue for appellate review, and the Missouri Supreme Court‘s refusal to review the claim does not constitute an adequate and independent state law ground for barring our review.
B. Content of the Excluded Evidence
During Owsley‘s offer of proof, a number of witnesses testified that Owsley was intoxicated on the day of the murder. Owsley‘s mother testified that she had seen Owsley at 11:00 a.m., and that he was intoxicated and so “messed up” that he “couldn‘t hardly stand up.” (Tr. Vol. V at 1103). At noon, a family friend saw Owsley, noticed that he was intoxicated, and told him to go home. (Tr. Vol. V at 1116-17). A different friend testified that he and Owsley smoked marijuana and PCP together later that afternoon. (Tr. Vol. V at 1109). Owsley‘s cousin testified that at approximately 4:45 p.m. she had seen Owsley leaving a liquor store. (Tr. Vol. V at 1112). When Owsley picked up his girlfriend from work at approximately 6:00 p.m., she drove the car home because of Owsley‘s intoxication. (Tr. Vol. V at 1120-21).
C. Constitutionality of the Missouri Statute Excluding Evidence of Intoxication
In Montana v. Egelhoff, 518 U.S. 37 (1996), four justices wrote that Montana‘s exclusion of voluntary intoxication evidence amounted to an exclusion of relevant exculpatory evidence and was a violation of due process. As Justice O‘Connor stated, “Unless a defendant is proved beyond a reasonable doubt to have possessed the requisite mental state, he did not commit the offense. Elimination of a critical category of defense evidence precludes a defendant from effectively rebutting the mental-state element, while simultaneously shielding the State from the effort of proving the requisite mental state in the face of negating evidence.” Id. at 70. Four other justices wrote that the State of Montana could constitutionally define the mens rea for a crime to forbid a defense of voluntary intoxication.
As a result of this even split on the Court, Justice Ginsburg‘s concurring opinion constitutes the applicable law. In her concurrence, Justice Ginsburg wrote that the difference between the two conflicting views came down to whether the Montana
After examining the Missouri statute,
A person who is in an intoxicated condition is criminally responsible for his conduct and an intoxicated condition is not a defense to any offense and may not be taken into consideration in determining the existence of a mental state which is an element of the offense unless the defendant proves that he did not know that it was an intoxicating substance when he consumed, smoked, sniffed, injected, or otherwise ingested the substance causing the condition.
1. A person who is in an intoxicated or drugged condition, whether from alcohol, drugs, or other substance, is criminally responsible for conduct unless such condition is involuntarily produced and deprived him of the capacity to know or appreciate the nature, quality or wrongfulness of his conduct. 2. The defendant shall have the burden of injecting the issue of intoxicated or drugged condition. 3. Evidence that a person was in a voluntarily intoxicated or drugged condition may be admissible when otherwise relevant on issues of conduct but in no event shall it be admissible for the purpose of negating a mental state which is an element of the offense. In a trial by jury, the jury shall be so instructed when
evidence that a person was in a voluntarily intoxicated or drugged condition has been received into evidence.
The second aspect of the rule is that a jury may not consider intoxication on the issue of the defendant‘s mental state. Exclusion from consideration of evidence of voluntary intoxication in no way relieves the state of its burden of proof. The state is still obliged to prove all elements of the offense, including the mental state, beyond a reasonable doubt. The . . . rule merely treats a sober person and a voluntarily intoxicated person as equally responsible for conduct. The rule . . . does not violate due process. . . . The state‘s remedy when a defendant attempts to introduce evidence of intoxication on the issue of state of mind is to object to the relevancy of the evidence.
State v. Erwin, 848 S.W.2d 476, 482 (Mo. 1993) (emphasis added). In the opinion the Missouri Supreme Court uses the term “evidence” repeatedly, rather than discussing a redefinition of the mens rea needed to be convicted of a crime.
Both the language of the statute and the opinions of the Missouri Supreme Court indicate that
A. Description of the Conflict
Over one year before trial was to commence, Owsley moved to dismiss trial counsel, James McMullin. When that motion was overruled, Owsley filed another motion to dismiss on September 29, 1993. Owsley described the difficulty he and McMullin were having communicating, listed the arguments that they had, and alleged that McMullin had breached confidentiality by telling another client that Owsley was a “liar.” After a hearing on the motion on January 20, 1994, McMullin wrote to inform the court that Owsley was refusing to meet with him. On that same day, McMullin wrote to Owsley and stated that he had asked the judge to dismiss him from the case. However, on January 27, 1994, McMullin asked the court to disregard his previous letter, as he and Owsley were on speaking terms again.
As the trial approached, the tensions between Owsley and McMullin intensified. McMullin filed a motion to replace counsel, stating that it would be in the best interests of all parties if he were relieved from the case. At the hearing held on October 12, 1994, Owsley again described the communication problems, and told the court that McMullin had called him a “pain in the ass” to others at the jail. Owsley told the court that McMullin had not been investigating his case adequately, and that it appeared counsel was “overworked.” (Tr. Vol. I, Oct. 12, 1994, at 19). McMullin then asked to be dismissed from the case. (Tr. Vol. I Oct. 12, 1994, at 20). Despite McMullin‘s request, the court denied the motion.
Throughout the pretrial motions, McMullin and Owsley disagreed about various matters. McMullin interrupted Owsley when he was speaking to the judge, and, at various points expressed his frustration with Owsley‘s efforts to work on his own behalf. It was obvious that McMullin and Owsley had not in any way coordinated their
On October 17, 1994, a hearing was held on Owsley‘s motion to dismiss counsel. Apart from detailing McMullin‘s inadequate preparation and recounting the arguments that had occurred, Owsley‘s motion also stated that McMullin had participated in a talk radio show and expressed his opinion that executions in death penalty cases should move forward more quickly. (Tr. Vol. I, Oct. 12, 1994, at 100). Further, Owsley asserted that McMullin was not on the public defender‘s list of approved counsel in death penalty cases. At the hearing, McMullin admitted that he was not on the “approved” list. (Tr. Vol. I, Oct. 12, 1994, at 101). Although McMullin again asked to be relieved of the representation, the court denied the motion. (Tr. Vol. I, Oct. 12, 1994, at 103). Despite these repeated requests for a change in representation from both Owsley and McMullin, the court refused to appoint substitute counsel.
B. Reviewing the Conflict
Rather than analyze the conflict between Owsley and trial counsel to determine if there was a Sixth Amendment violation, the majority focuses on the standard of review. See ante at 2. The majority opinion seems to imply that we can no longer examine existing Supreme Court precedent to determine an issue that has not been precisely decided by the Supreme Court. Although the majority relies on Williams v. Taylor, 120 S.Ct. 1495 (2000), it is clear from examining Williams that such a proposition is doubtful.
In Williams, Justice O‘Connor wrote that “it will often be difficult to identify separately those state-court decisions that involve an unreasonable application of a legal principle (or an unreasonable failure to apply a legal principle) to a new context.”
Owsley has identified several Supreme Court cases that discuss the right to counsel in terms of a counsel free from conflict. See Holloway v. Arkansas, 435 U.S. 475 (1978); Wood v. Georgia, 450 U.S. 261 (1981). Moreover, there are cases within the Eighth Circuit that discuss irreconcilable conflicts of the type that exist in this case. See Smith v. Lockhart, 923 F.2d 1314 (8th Cir. 1991); United States v. Hart, 557 F.2d 162 (8th Cir. 1977); White v. White, 602 F.Supp. 173 (W.D. Mo. 1984). The test articulated by the Ninth Circuit examines the timeliness of the request for substitute counsel; the adequacy of the court‘s inquiry into a defendant‘s complaint; and whether the conflict was so great that it resulted in a total lack of communication and prevented an adequate defense. See United States v. Walker, 915 F.2d 480 (9th Cir. 1990).
Here, Owsley requested substitute counsel over a year before the trial was to begin. Both Owsley and McMullin asked numerous times that McMullin be dismissed from the case. It does not appear that this conflict was something created by Owsley; it appears to have been a mutual problem. In light of this communication problem between Owsley and McMullin, I cannot agree with the majority.
III. CONCLUSION
In conclusion, I believe that there were two serious errors in the proceedings below that require a new trial. First, Owsley was unconstitutionally denied the right to introduce evidence of his intoxication that would have tended to show that he did not have the capacity to deliberate, an element needed for a conviction for first degree murder. Second, the trial court failed to appoint substitute counsel for him after an irreconcilable conflict arose between Owsley and his counsel. For the forgoing reasons, I would grant Owsley a new trial.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.