United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
MARK L. HORNSBY, Magistrate Judge.
Steven Tauzin ("Petitioner"), Noe Stephan, and Misty Ellis, became suspects in connection with the murder of tennis coach Gilbert W. Moore. The evidence indicated that Mr. Moore came home and surprised the three suspects, who were burglarizing his Shreveport home, and Moore was beaten to death with a hammer and crowbar. Noe Stephan cooperated with the district attorney by providing information in exchange for a grant of use immunity. He pleaded guilty to attempted aggravated burglary and received a 15-year-sentence.
Petitioner rejected a plea offer of manslaughter and 40 years and proceeded to trial. Misty Ellis testified against him. Petitioner was convicted, by an 11-1 vote, of second-degree murder and received a mandatory life sentence. Misty Ellis was not charged in connection with the murder, and she was later allowed to plead guilty to a misdemeanor to resolve a pending felony drug charge.
Petitioner's conviction was affirmed on direct appeal. State v. Tauzin, 880 So.2d 157 (La.App.2d Cir. 2004). Petitioner also pursued a post-conviction application in state court. He now seeks federal habeas relief on several grounds. For the reasons that follow, it is recommended his petition be denied.
Misty Ellis testified that she knew Mr. Moore and had lived with him "as friends" at his home until they had a falling out in 1998. She then moved in with Petitioner and Mr. Stephan. The three of them were eating and drinking one night at a Bossier City bar, "The Locker Room, " when they saw Mr. Moore. Ms. Ellis mentioned to Petitioner and Stephan that she used to live with Moore and that he still had some of her "stuff" at his home.
Ellis, Petitioner, and Stephan later went to a strip club, "The Centerfold, " so Ellis could apply for a job. She came up with the idea for the three of them to break into Moore's home so that she could get her social security card, which she needed to secure employment, and other personal belongings such as clothing.
Ellis testified that Petitioner suggested they steal gloves from a hospital to avoid leaving fingerprints, and they did. They also changed into dark clothing. Petitioner armed himself with a crowbar. They drove past the Locker Room and saw that Moore was still there.
Ellis testified that the group went to Moore's house, where Petitioner climbed the fence and gained entry by breaking a window. He let the others in the home through a side door. The three looked for Ellis' belongings, but Moore came home to find them and was upset over the broken window. Ellis testified that she was in a hiding place but heard arguing and a "big thud, " followed by gargling noises. When things quieted down, she came out and saw the victim face down on the floor, with Petitioner standing a foot away holding a hammer. Stephan was also nearby holding a crowbar. Ellis quoted Petitioner as saying he "needed to take out some frustration, " and she said he wiped his forehead with paper towels and attempted to wipe some footprints from the floor. For some reason, Petitioner filled a syringe with cooking oil, pulled down the victim's pants, and stuck the syringe in the victim's buttock.
The group took some items from the victim's pockets and home. On their way back to Bossier City, they stopped on the Shreveport-Barksdale bridge. Petitioner threw into the river the crowbar, their gloves, some of their clothing, and other items.
Petitioner soon left town. Melissa Quick, his former fiancee, testified that he showed up at her home in Florida and said he needed to get away from Shreveport because he was "in trouble" because "I think I killed someone." Quick's current fiance said Petitioner had to leave, and he did.
Misty Ellis was interviewed by police and denied any knowledge of the murder. She and Noe Stephan then went to Mexico and soon sent word to Petitioner to join them. He did, but they returned to the Shreveport-Bossier area within a couple of weeks to get some money. They all returned to Mexico and got an apartment, but they eventually returned to the Shreveport area, and Petitioner was arrested.
Robert Catts, a friend of Petitioner, testified that Petitioner called him during the time the group was on the run and said he needed a place to stay. Petitioner showed up with Ellis and Stephan. He said they had been to Mexico and the police were trying to pin the murder of the tennis coach on them, so they needed to get away to get their alibis together. The group went back to Mexico after a couple of weeks. Petitioner continued to call Catts. He had denied their involvement in the murder, but he made an incriminating statement to Catts during one call about the weapons being in the river. He also once pointed out the location of the murder when they drove by the area. Catts contacted the authorities, which led to the arrests.
The owner of the Locker Room testified that the victim, Moore, was a regular customer and friend. Moore had been at the bar the night of the murder. Misty Ellis and her group were also in the bar that evening, but he did not recall seeing anyone from their group speak to the victim.
Two crumpled bundles of paper towel were found near the victim. One contained a couple of drops of blood that DNA testing linked to Petitioner. The towel also had bloodstains linked to the victim. The autopsy showed that the victim received between 12 and 18 separate blows to the head that crushed his skull. Between four and six of them would have been lethal had they been inflicted separately. Most of the head wounds were consistent with the claw hammer found at the scene. The victim's body also indicated approximately six blows to the lower back and forearms that were consistent with infliction by a long, slender object like a crowbar.
Petitioner testified at trial and admitted the trio broke into the victim's home. He said that he was drunk and mostly sat on the couch while Ellis and Stephan searched the home. Petitioner said that when they heard the victim come home, Stephan hid behind a door with a crowbar, and Petitioner ducked into a closet. Petitioner said that when he returned to the kitchen he saw Stephan beating the victim, so he walked out. When he returned again, Ellis was screaming at the victim and beating him with the crowbar. Blood spattered onto Petitioner's face, so he wiped his head with the paper towel. Petitioner said Stephan then took the crowbar, looked at Petitioner, and said, "All right now, you hit him because we are all going to be in this together." Petitioner said he complied by hitting the victim once with the hammer in the body or arm area. He then left, and the other two followed him out the door.
Petitioner testified that it was Stephan who ordered they stop at the top of the bridge and then threw their clothes and the crowbar in the river. Petitioner said he tried to get away from Ellis and Stephan by going to stay with a friend, but they nonetheless were able to convince him to join them in Mexico. He said he ran after the murder because he was scared.
Petitioner was originally indicted for first-degree murder. Tr. 11. A Louisiana district attorney may amend a grand jury indictment to charge a lesser offense. An amended indictment was filed on November 14, 2000 that charged Petitioner with the second-degree murder of Gilbert Moore in violation of La. R.S. 14:30.1. Tr. 10A. The record the State filed with this court includes another amended indictment dated February 4, 2003 that also charges Petitioner with second-degree murder, cites the statute for the crime, and asserts that on a particular date Petitioner killed Mr. Moore when he had specific intent to kill and inflict great bodily harm "and" while engaged in the perpetration and attempted perpetration of certain felonies "even though he had no intent to kill or inflict great bodily harm."
Petitioner argues that the actual amended indictment that was part of the state appellate record is slightly different. He attaches it to his traversal (Doc. 14) as an exhibit. That amended indictment refers to the original grand jury indictment in April 2000 and charges that Petitioner committed "the following criminal offenses in that he" on a certain date killed Mr. Moore as described in the earlier amendment. The amended indictment submitted by Petitioner does not cite the statute for the crime, and its assertions that the killing was with intent to kill "and" while engaged in certain felonies even though without intent to kill are not wholly consistent with the provisions of the statute.
Petitioner argued in his post-conviction application that the state court lacked jurisdiction because the amended indictment failed to state what offense he was being charged with. He contended that this violated the Sixth and Fourteenth Amendments. Tr. 2272-74. The State responded and quoted the relevant language in the amended indictment that Petitioner contends was the final version. The State argued that the indictment, despite its imperfections, was adequate to comply with state law, and Petitioner had no doubt he was on trial for second-degree murder. Tr. 2297-99.
Louisiana Code of Criminal Procedure Art. 464 provides that the indictment is to state the citation of the statute charged, but error in the citation or its omission is not ground for dismissal of the indictment or reversal of a conviction if the error or omission did not mislead the defendant to his prejudice. The trial court pointed to that article and denied the claim. Tr. 2428-29. The appellate court summarily denied this claim, along with some others, on the grounds that Petitioner "failed to meet his burden of proving that the requested relief should be granted." Tr. 2488. Petitioner included this argument in an application to the Supreme Court of Louisiana, which denied relief without comment.
The sufficiency of a state indictment is not a matter for federal habeas relief unless it can be shown that the indictment is so defective that the convicting court had no jurisdiction. McKay v. Collins, 12 F.3d 66, 68 (5th Cir. 1994). And "[w]here the state courts have held that an indictment is sufficient under state law, a federal court need not address that issue." Id . In other words, when the sufficiency of the indictment was squarely presented to the highest court of the state, and that court held that the trial court had jurisdiction, the sufficiency of the indictment is a question foreclosed to federal habeas review. Evans v. Cain, 577 F.3d 620, 624 (5th Cir. 2009). "An issue may be squarely presented to and decided by the state's highest court when the petitioner presents the argument in his application for postconviction relief and the state's highest court denies that application without written order." Id.
Petitioner argues that the trial court misunderstood his argument as complaining about the lack of a citation to the statute. Petitioner says his actual argument is that the wording in the amended indictment simply does not describe a crime that is defined by the Louisiana murder statutes. His argument is not unreasonable, but he presented it squarely to all three levels of the state judiciary, and they deemed the indictment sufficient under state law. There is also no doubt that Petitioner was aware from the prior amendments and the entire context of the pretrial and trial proceedings that he was being charged with second-degree murder. Habeas relief is not available on this claim.
Reasonable Doubt Instruction
A. The Instructions
Petitioner argued on post-conviction that the trial judge's reasonable doubt instruction was improper and reduced the State's burden below what is required by due process. The judge instructed that the accused is presumed to be innocent until his guilt has been established beyond a reasonable doubt at trial. He added that the "presumption of innocence is another way of saying that a person is not guilty until proven otherwise beyond a reasonable doubt." The judge repeated that the burden was on the State to prove every essential element of the crime charged, but he added that "this does not mean that the State must prove beyond a reasonable doubt such facts that may be connected with the crime charged but are not essential elements thereof." He later added that reasonable doubt "does not mean all possible doubt but means doubt based upon a reason." The jury was told that if there was doubt in their mind as to the accused's guilt "which doubt is based upon a reason or for which doubt you can express a reason then the defendant is not guilty." Tr. 2034-36.
B. State Court Decision; Habeas Burden
The trial court denied the post-conviction claim on the grounds that it was waived when the defense did not raise an objection. Tr. 2429. The appellate court summarily rejected this claim, along with others, on the grounds that Petitioner "failed to meet his burden of proving that the requested relief should be granted." This last reasoned state court opinion did not expressly rely upon a procedural bar, so that defense is probably not available. Ylst v. Nunnemaker, 111 S.Ct. 2590 (1991). The summary denial of the claim by the appellate court appears to be sufficient to constitute an adjudication on the merits within the meaning of 28 U.S.C. § 2254(d). Cullen v. Pinhoster, 131 S.Ct. 1388, 1402 (2011).
Habeas corpus relief is available with respect to a claim that was adjudicated on the merits in the state court only if the adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d).
A state court's decision is contrary to clearly established Supreme Court precedent when it relies on legal rules that directly conflict with prior holdings of the Supreme Court or if it reaches a different conclusion than the Supreme Court on materially indistinguishable facts. Pape v. Thaler, 645 F.3rd 281, 287 (5th Cir. 2011). A state court makes an unreasonable application of clearly established federal law when it identifies the correct governing legal principle from the Supreme Court's decisions but applies it to the facts in a way that is not only incorrect but objectively unreasonable. Renico v. Lett, 130 S.Ct. 1855, 1862 (2010).
When there has been a summary denial, the petitioner may meet his burden under the first prong of Section 2254(d) only by showing that there was "no reasonable basis" for the state court's decision. The federal habeas court must determine what arguments or theories could have supported the summary decision, and then it must ask whether it is possible fair-minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of the Supreme Court. Pinholster, 131 S.Ct. at 1402, citing Harrington v. Richter, 131 S.Ct. 770, 786 (2011).
Petitioner's federal petition invokes In re Winship, 90 S.Ct. 1068 (1970) which held that the due process clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." The only other Supreme Court decisions Petitioner cites are Cage v. Louisiana, 111 S.Ct. 328 (1990) and Victor v. Nebraska, 114 S.Ct. 1239 (1994).
Cage held that a reasonable doubt instruction ran afoul of Winship. The Court found troublesome phrases that equated a reasonable doubt with a "grave uncertainty" and an "actual substantial doubt" and a statement that a verdict of guilty could be returned based on a "moral certainty" of guilt. The combination of those terms, when the charge was read as a whole, resulted in a deficient instruction. Victor upheld a jury charge that contained some, but not all, of the three suspect phrases assessed in Cage. The suspect phrases in Victor did not impermissibly lower the State's burden because the overall instructions ...