State of Missouri v.
771 S.W. 2d 57 (Mo. banc 1989)
Bruce Kilgore was executed
on June 16, 1999
On August 25, 1986 Willie Luckett, an employee at the Cristos
restaurant in St. Louis, was fired after co-worker Marilyn Wilkins
had advised management that he was stealing food.
On August 27, 1986, Luckett, his girlfriend Renee
Dickerson and Bruce Kilgore developed a scheme to rob Ms. Wilkins.
That evening Kilgore and Luckett drove to the restaurant in a
borrowed car and waited for Ms. Wilkins to leave.
Between 10:00 p.m. and 10:30 p.m. Ms. Wilkins
left the restaurant. Before Ms. Wilkins could get to her automobile,
Kilgore and Luckett pulled beside her and Luckett forced her into
Kilgore drove the car to Kinloch, Missouri, a
town in north St. Louis County. During the drive Luckett held Ms.
Wilkins' face down in the back seat of the car and ordered her to
remove her rings. Luckett removed a stocking mask he was wearing
when Ms. Wilkins recognized his voice. Luckett told Ms. Wilkins she
would be killed because she recognized him.
On August 28, 1986 Kilgore, Luckett and Luckett's
cousin, Lessie Vance drove to a pawn shop where they sold two of
five rings taken from Ms. Wilkins on the night of the murder.
Kilgore and Luckett split the money received for the rings.
Later that evening Luckett and Kilgore decided to
move Ms. Wilkins' body because they felt it was too close to
Luckett's residence in Kinloch. The body was later found on August
29, 1986 in Forest Park in St. Louis.
Ms. Wilkins died as a result of a laceration to
the throat, five and one-half inches wide by three and one-half
inches deep. The wound was triangular in shape and severed the
jugular veins on both sides of her neck and caused severe damage to
the trachea. Ms. Wilkins also suffered several other stab wounds to
the neck and back, and lacerations to her right hand which appeared
to occur while she was defending herself.
On September 3, 1986 Kilgore and Luckett were
arrested for the murder of Marilyn Wilkins. During the trial Renee
Dickerson testified that Kilgore told her that he had slit Ms.
06/29 - Kilgore was sentenced to three concurrent seven
year sentences from St. Louis City for three counts of Robbery
8/27-Bruce Kilgore and Willie Luckett murdered Marilyn
Wilkins in St. Louis, Missouri.
9/11-Kilgore is charged by indictment with Murder First Degree,
Robbery First Degree and Kidnapping.
8/17-Trial began in St. Louis City Circuit Court.
8/23-Kilgore is convicted of Murder First Degree, Robbery First
Degree and Kidnapping.
8/25-The jury recommends the death penalty as the sentence for the
10/23-The court sentences Kilgore to death.
10/27-Kilgore filed an appeal with the Missouri State Supreme Court.
9/13-Kilgore filed a motion with the Missouri State Supreme Court
for post conviction relief.
5/17-The Missouri State Supreme Court affirmed the conviction and
7/14-The Circuit Court denied Kilgore's motion for
post conviction relief.
10/2-The United States Supreme Court denied discretionary review of
Kilgore's state court appeal.
10/6-Kilgore filed a petition for writ of habeas
corpus in the United States District Court for the Eastern
District of Missouri.
6/19-The Missouri State Supreme Court affirmed the denial of
post conviction relief.
7/21-The United States District Court for Eastern Missouri denied
Kilgore's habeas corpus petition.
9/8-The United States Court of Appeals for the Eighth Circuit Court
of Appeals affirmed the district court's decision denying federal
habeas corpus relief.
12/31-Kilgore filed a second post conviction
relief petition in the St. Louis City Circuit Court.
3/9-The United States Supreme Court declined to review Kilgore's
4/3-The St. Louis City Circuit Court dismissed the second
post conviction relief petition.
12/22-The Missouri State Supreme Court affirmed the denial of the
second post conviction motion.
4/26-The United States Supreme Court declined to review the Missouri
Supreme Court's decision.
5/13-The Missouri State Supreme Court issued an order and warrant
setting Kilgore's execution for June 1 6, 1999.
Bruce W. Kilgore took part in the
abduction and murder of a north St. Louis restaurant worker in 1986.
Kilgore, of Berkeley, was convicted of first-degree
murder, kidnapping and robbery in the death of Marilyn Wilkins.
Marilyn, 54, was abducted Aug. 27, 1986, from the
parking lot of Cristo's Restaurant on Riverview Drive. She had
worked there as a salad maker and lived in St. Louis.
Two days later, her body was found near the St.
Louis Art Museum in Forest Park. She was stabbed repeatedly, and her
throat was slashed.
Prosecutors alleged that Kilgore held Wilkins
while another man, Willie Luckett, stabbed her. Luckett was angry
with Wilkins because she caused him to be fired from Cristo's.
Wilkins got him fired from Cristo's by telling the boss that Luckett
Luckett was sentenced to life in prison without
parole. Kilgore claims in his clemency application that his
accomplice, Willie Luckett, killed Marilyn Wilkins in 1986. Luckett
is serving life in prison.
Kilgore says he sat in the car while Luckett
pulled Wilkins into the alley in suburban St. Louis and slashed her
throat. Missouri Attorney General Jay Nixon said he is convinced
that Kilgore was the stabber. "That's what the testimony was in the
case,'' Nixon said. "The jury had the opportunity to look at the
evidence and they made a very reasoned decision here.''
Nixon said there are many reasons why Luckett got
life in prison and Kilgore got the death sentence. "Luckett
testified, Kilgore didn't,'' Nixon said. "Luckett had no prior
convictions, Kilgore did. Luckett spoke on his own behalf in the
penalty phase, saying he was impaired by drugs and alcohol. Kilgore
didn't. This was a brutal murder in which the jury saw the evidence
and made the hard call."
United States Court of Appeals
For the Eighth Circuit
Michael Bowersox and Jeremiah W. Nixon, Appellees.
Submitted: June 9, 1997
Filed: September 8, 1997
RICHARD S. ARNOLD,
Bruce Kilgore was convicted of first-degree
murder and sentenced to death. After the Missouri state courts
affirmed his conviction and denied him post-conviction relief,
Kilgore filed a petition for a writ of habeas corpus under 28 U.S.C.
2254 in the District Court.(1) The District Court denied the
petition, and we affirm.
Bruce Kilgore was convicted of first-degree murder for the death of
Marilyn Wilkins. The facts surrounding her kidnapping and
murder are laid out in detail in the District Court's opinion, and
we repeat only a few here, for the sake of clarity.
Bruce Kilgore and Willie Luckett together kidnapped Marilyn Wilkins
as she left her job working at a restaurant where Luckett formerly
worked. Luckett's belief that Wilkins was responsible for his
firing led to the plan to kidnap her. Because she recognized
Luckett, Luckett told her she would have to be killed. She was
then stabbed several times, and died after her throat was cut.
Renee Dickerson, Luckett's girlfriend, knew of
the kidnapping plan, and saw the two men after the murder.
Lessie Vance, a cousin of Luckett's, accompanied the two men on the
day following the murder on trips to pawn shops, where they sold
Wilkins's jewelry. Kilgore was eventually arrested, and made
statements to the police about the murder and where evidence could
be found. After a jury trial, Kilgore was convicted of first-degree
murder, and sentenced by the jury to death and to two consecutive
life sentences for first-degree robbery and kidnapping.
The Missouri Supreme Court affirmed Kilgore's conviction on direct
appeal, and approved his sentence after a proportionality review.
State v. Kilgore, 771 S.W.2d 57 (Mo.) (en banc), cert. denied, 493
U.S. 874 (1989).
Kilgore filed for post-conviction
relief under Missouri Supreme Court Rule 29.15, but was denied
relief because his motion was untimely and unverified. After a
hearing, the Missouri Supreme Court affirmed the denial of post-conviction
relief. Kilgore v. State, 791 S.W.2d 393 (Mo. 1990) (en banc).
Kilgore then sought a writ of habeas corpus under Missouri Supreme
Court Rule 91. The Supreme Court denied Kilgore's petition,
because all the grounds for relief stated therein had been rejected
either on direct appeal or as part of the Rule 29.15 proceeding, or
were procedurally barred because Kilgore had provided no sufficient
reason to excuse his failure to present them in those earlier
No other state-court remedy then
remained. Kilgore filed a petition for a writ of habeas corpus
in the District Court under 28 U.S.C. 2254, which was denied.
Kilgore now appeals.
Kilgore offers several arguments for reversal, and we address them
seriatim. The State points out throughout its brief that
Kilgore should be procedurally barred from raising many of his
claims. Because we reject the claims on their merits, we do
not discuss the procedural-bar issues. See Lashley v.
Armontrout, 957 F.2d 1495, 1499 (8th Cir. 1992), vacated on other
grounds, 993 F.2d 642 (8th Cir. 1993), rev'd on other grounds, 507
U.S. 272 (1993).
A. Alleged Prosecutorial
Kilgore argues that prosecutorial
misconduct prejudiced his case. The misconduct he alleges
centered primarily around one of the state's witnesses, Renee
Dickerson. Kilgore believes the prosecution withheld vital
information about Dickerson and about another witness, Lessie Vance.
1. Notification of Dickerson's Testimony
Kilgore's counsel asked to depose Dickerson months before trial.
The prosecution responded that she would not be called as a witness,
and that she in fact had been charged with hindering prosecution.
Kilgore's attorney accordingly did not depose Dickerson. Later,
once the trial was under way, the prosecution endorsed Dickerson as
a witness, just before she was to testify in the penalty phase.
Kilgore argues that the prosecution suppressed valuable evidence and
impermissibly surprised Kilgore with Dickerson's testimony, in
violation of Missouri court rules and the Constitution.
The District Court found that the prosecution's
conduct was explained by Dickerson's decision, after trial had begun,
that she was willing to testify. Defense counsel did not have
time to depose Dickerson, but did interview her before she testified,
and, according to the Missouri Supreme Court, learned of the content
of Dickerson's upcoming testimony. See State v. Kilgore, 771
S.W.2d at 65.
Before trial, Dickerson had not been expected to
testify. The prosecution assumed, reasonably, that she would invoke
the privilege against self-incrimination if called as a witness.
After the trial began, Dickerson pleaded guilty to a criminal charge
in connection with the murder, thus eliminating this obstacle to her
Dickerson's testimony was the only
evidence suggesting that Kilgore, rather than Luckett, actually
wielded the knife. Dickerson testified that Kilgore admitted to her
that he killed Wilkins. This was doubtless damaging testimony,
and may very well have been a major factor in the jury's decision to
sentence Kilgore to death. The question, however, is not whether the
evidence was damaging to the defense, but whether the defendant was
deprived of a fair trial. The defense's lack of deposition
testimony meant that it had less information with which to
Prior to trial, Dickerson had spoken with
authorities about the killing on three separate occasions, without
ever once mentioning that she heard Kilgore confess. One can
presume she would have made the same omission, under oath, in a
deposition, and the defense would have had one more prior
inconsistent statement of Dickerson's to bring out at trial.
The standard for evaluating the failure to provide information to
the defense is whether a reasonable probability exists that, had the
information been disclosed to the defense, the result of the
proceeding would have been different. United States v. Bagley,
473 U.S. 667, 682 (1985).
The District Court held that, because defense
counsel had ample other information and prior inconsistent
statements with which to impeach Dickerson, and with which he did
impeach Dickerson, there was no reasonable probability the outcome
would have been different, and the Bagley standard was not met.
The defense brought out that Dickerson had, on
three occasions, failed to mention Kilgore's admission when speaking
with authorities; that she claimed to have heard Kilgore's admission
right after being awakened; and that she was Luckett's girlfriend
and might be biased on that account. We see no reason to
disagree with the District Court's decision that deposition
testimony of Dickerson would not have provided the defense with
significantly more impeachment material than it had anyway, and that
the additional information would not have changed the outcome of the
2. Plea Bargain
Kilgore also argues that the prosecution failed to disclose that
Dickerson's testimony was part of a plea bargain between her and the
prosecution. The District Court found that Kilgore presented
no evidence that such an agreement existed. The Missouri
Supreme Court refers to "the plea-bargain disposition of Dickerson's
own criminal case," 771 S.W.2d at 67, but the record nowhere shows
what the bargain was. It is therefore impossible to say what
the effect of cross-examination on the subject of the plea bargain
would have been, so this argument cannot succeed.
3. Change of Theory at Penalty Phase
The prosecution's theory during the guilt phase
was that Willie Luckett killed Marilyn Wilkins, and that Kilgore was
guilty of aiding and abetting Luckett. After Dickerson
testified that Kilgore admitted doing the killing himself, the
prosecution changed its theory, and during the penalty phase argued
that Kilgore was the killer. Kilgore argues that this
change in theories violated his constitutional rights. The
District Court rejected his argument.
The Court attributed the surprising nature of the
change to the unusual "confluence of events" during Kilgore's trial,
rather than to prosecutorial misconduct. We see no error in
the District Court's analysis. The prosecution, upon learning
for the first time (from Dickerson) that Kilgore had been the killer
(or had admitted the killing) could hardly be expected not to use
the information. At this point, Kilgore had already been
convicted of capital murder. The change in theory might, in
fact, have helped Kilgore, by giving the jury some reason to suspect
the soundness of the prosecution's evidence.
Tape Recordings of Lessie Vance
asserts that the prosecution committed another Bagley violation in
failing to disclose certain tape-recorded statements of Lessie Vance,
which the defense would have been able to use in impeaching Vance's
credibility. Vance testified at trial that he, Kilgore, and
Luckett pawned Wilkins's jewelry the day after she was killed.
The tape-recordings apparently were of an early conversation between
Vance and the police, in which Vance provided an alternative
explanation of why he had Wilkins's jewelry.
District Court held that there was no Bagley prejudice in the non-disclosure
of the tapes, because Vance testified repeatedly at trial that he
had lied during that first meeting with the police. The
defense knew about the statements themselves, and would have been in
no better position to impeach Vance if it had had the tapes.
We concur in the District Court's conclusion.
B. Jury Instruction
challenges one of the jury instructions given in his case as failing
to require the jury to find that he had deliberated in order to
convict him of first-degree murder. It is unclear whether
Kilgore intends us to read this argument as if the instruction
itself worked a constitutional violation, or as an example of
ineffective assistance of counsel. It was argued to the
District Court as an ineffective-assistance-of-appellate-counsel
claim, and we too will treat it as such.
claim was presented to the District Court for the first time in a
Rule 59(e) motion. Because Kilgore showed no good reason to
excuse his failure to raise the claim in his original habeas
petition, the District Court correctly dismissed the claim as
untimely. It went on, however, to reject the argument on its
merits as well.
There are several problems with Kilgore's
assertion that his appellate counsel was ineffective for failing to
argue this purported instructional error. First, the cases
upon which Kilgore principally relies to reveal the error, and which
he argues show the ineffectiveness of his appellate lawyer, were
decided after Kilgore's direct appeal had already been affirmed by
the Missouri Supreme Court. See State v. Ervin, 835 S.W.2d
905 (Mo. 1992) (en banc), cert. denied, 507 U.S. 954 (1993); State
v. O'Brien, 857 S.W.2d 212 (Mo. 1993) (en banc); State v. Ferguson,
887 S.W.2d 585 (Mo. 1994) (en banc).
Second, while the Missouri state courts have
refined their jury instructions so that they define more carefully
Missouri's definition of its own "deliberation" requirement, there
is no due-process violation in the instruction as it was given to
Kilgore's jury. The instruction required the jury to find that
Kilgore acted with cool reflection, which is the precise definition
of deliberation under state law. We affirm the District Court
on this point as well.
The jury found four statutory
aggravating circumstances, plus two others based on prior
convictions, when it sentenced Kilgore. Kilgore now argues that the
four statutory aggravating-circumstance instructions were
constitutionally flawed. We do not agree.
Kilgore argues that two of the aggravating circumstances, as
submitted to the jury, are unconstitutionally vague and overbroad.
One of the aggravating circumstances the jury
found was that the killing "involved torture or depravity of mind
and as a result thereof was outrageously or wantonly vile, horrible,
or inhuman." Kilgore v. State, 771 S.W.2d at 68. We have
rejected the argument that this instruction is vague. In Smith
v. Armontrout, 888 F.2d 530, 538 (8th Cir. 1989), we held that a
finding of torture could show a properly limited construction of the
"vile, horrible, or inhuman" description, such that jurors could
reasonably designate some murders as worse than others for purposes
of imposing the death penalty. (The Missouri Supreme Court had
adopted this limiting construction before the trial in this case.)
The instruction was supported by substantial
evidence, since there is evidence that Wilkins was kidnapped, driven
around face-down in a car, told she was going to be killed,
and had wounds consistent with attempting to fight off her attacker.
These facts support a finding of both physical and psychological
torture, and the instruction as applied in this case was neither
vague nor overbroad.
The second aggravating
circumstance Kilgore challenges for overbreadth is that the killing
was committed "for the purpose of avoiding, interfering with, or
preventing a lawful arrest." Kilgore v. State, 771 S.W.2d at 68.
The District Court held that this aggravating circumstance provided
the jury with a means rationally to distinguish murderers who should
receive the death penalty from those who should not. Accord,
Mathenia v. Delo, 975 F.2d 444, 449-50 (8th Cir. 1992), cert. denied,
507 U.S. 995 (1993). We agree.
argues that two of the aggravating circumstances submitted to the
jury were duplicative. The jury found both that Kilgore
committed the killing for the purpose of receiving money or some
other thing of monetary value, and that Kilgore committed the crime
during the perpetration of a robbery and kidnapping. As the
Missouri Supreme Court has noted, the two circumstances are related,
but distinct, because they concern different facets of criminal
activity. State v. Jones, 749 S.W.2d 356, 365 (Mo.) (en banc),
cert. denied, 488 U.S. 871 (1988).
Even if that distinction were insufficient, and
only one of the aggravating circumstances were allowed to stand, the
error would still be harmless. Four aggravating circumstances
would remain. By the same logic, even if Kilgore were to
prevail in all his arguments, he would only eliminate three, or
possibly four, of the six aggravating circumstances cited by the
jury. In Missouri, only one aggravating circumstance is
required to support a death sentence. Schlup v. State, 758 S.W.2d
715, 716 (Mo. 1988) (en banc). Missouri is a "non-weighing"
state. The District Court correctly rejected Kilgore's
argues that the mitigating-circumstance instruction given his jury
was phrased so as to limit impermissibly the jury's discretion to
find that there were mitigating circumstances which outweighed the
aggravating circumstances of the crime. The instruction, he
argues, violates Mills v. Maryland, 486 U.S. 367 (1988), and McKoy
v. North Carolina, 494 U.S. 433 (1990). Kilgore's argument is
foreclosed by our decision in Reese v. Delo, 94 F.3d 1177, 1186 (8th
Cir. 1996), cert. denied, 117 S. Ct. 2421 (1997).
In that case, the petitioner made a virtually
identical argument to the one Kilgore now advances, about the same
wording in Missouri's mitigating-circumstance instruction. We
reject Kilgore's argument for the same reasons.
E. Voir Dire
Kilgore alleges that the
voir dire procedures employed in the selection of his jury were
unconstitutional. Kilgore, who is African-American, was
convicted by an all-white jury, and asserts that potential African-American
jurors were struck from the venire in violation of Batson v.
Kentucky, 476 U.S. 79 (1986). The prosecution used five of its
nine peremptory strikes on African-Americans. The Missouri
Supreme Court, and the District Court in turn, held that the
prosecution struck those African-American veniremembers for race-neutral
reasons. We agree.
Four of the five African-American
prospective jurors who were struck had had significant contact with
the criminal-justice system. Kilgore argues that there were
white jurors who had had similar contact, but were not struck.
The two groups are not identical, however; the four African-American
potential jurors also gave what the prosecution considered "weak"
or equivocal answers when asked about their willingness to impose
the death penalty.
The white potential jurors who had had contact
with the criminal justice system were not similarly "death-scrupled."
The fifth African-American juror who was struck said she had seen
the victim's son on television and in public. The son was
scheduled to testify for the state. The prosecution struck her
out of concern that her prior experience of one of the state's
witnesses might unfavorably affect her perception of that witness's
The District Court held that since the
prosecution offered acceptable race-neutral reasons for exercising
its peremptory strikes of the five African-American potential jurors,
there is no Batson violation. Again, we agree with that Court.
F. Trial Court Errors
the trial court committed several errors which violated his
Kilgore asserts that the trial
court erred in admitting into evidence several statements he made to
the police. He alleges he was beaten and threatened by police
officers, and that the statements he made were therefore physically
and mentally coerced.
The District Court was unconvinced by this
allegation, however, because Kilgore never produced statements from
any of the witnesses he claims can corroborate his assertions,
including his mother and aunt, both of whom testified for him during
the penalty phase of his trial without mentioning beatings or the
noticeable injuries Kilgore asserts he received during the beatings.
Additionally, four police officers testified that Kilgore was not
beaten or threatened, but was in fact notified of his Miranda rights
at the time of his arrest and at several times afterward. We
see no error in the District Court's conclusion.
2. Lack of Jurisdiction
argues that the information in lieu of indictment did not allege
facts sufficient to base jurisdiction in the City of St. Louis.
The information alleged that the killing took place in St. Louis
County, outside the jurisdiction of the City. Before the
District Court, Kilgore alleged that no element of the crime charged
took place within the City's jurisdiction.
Kilgore was charged with multiple crimes, however:
first-degree murder, first-degree robbery, and kidnapping. The
information asserted the City had jurisdiction because Wilkins was
abducted in the City. Federal-court review of the sufficiency of an
information is limited to whether it was constitutionally deficient;
whether it comported with requirements of state law is a question
for state courts. Johnson v. Trickey, 882 F.2d 316, 320 (8th
The inquiry for our Court, therefore, is not
whether the information communicated the basis of jurisdiction in
compliance with state law, but rather whether it gave Kilgore
adequate notice of the potential charges against him so that he
could prepare to contest those charges. Blair v. Armontrout,
916 F.2d 1310, 1329 (8th Cir. 1990), cert. denied, 502 U.S. 825
(1991). The District Court held that since the information
provided Kilgore with sufficient notice, it met the requirements of
due process. We agree with that determination.
3. Trial Judge's Report
judge, in accordance with Mo. Rev. Stat. 565.035, submitted a
report about Kilgore's trial to the Missouri Supreme Court for
consideration in its proportionality review of Kilgore's sentence.
Kilgore argues that the statute requiring submission of the report
is unconstitutional because it denies convicted defendants their
right to confrontation. This claim has no merit. The trial
judge was not a witness against Kilgore.
In addition, subsection 4 of that statute gives
defendants, and the state, the right to submit briefs and to present
oral argument about the proportionality of the sentence to the
Supreme Court. Mo. Rev. Stat. 565.035.4. It is
clear from that court's opinion that it considered several arguments
advanced by Kilgore in arriving at its decision that the death
sentence was proportionate in his case. Kilgore v. State, 771 S.W.2d
at 68-70. Kilgore's right to confrontation was not
4. Victim's Good Character
The District Court dismissed this claim because petitioner did not
specify what evidence of the victim's good character was introduced.
Kilgore includes no more information in his brief to this Court.
We likewise reject the claim.
Kilgore alleges that the Missouri
state courts deprived him of his constitutional rights in
arbitrarily applying a procedural-bar rule in Kilgore's 29.15
proceedings. He argues first that the 30-day filing deadline
contained in Rule 29.15 is unconstitutional because it is too short.
This cannot be the case; states are not required by the Constitution
to provide post-conviction procedures like that of Rule 29.15, and
the time limit is not, at least in the abstract (which is all
petitioner argues), unreasonably short.
also alleges that the state courts deprived him of his
constitutional right to equal protection by refusing to consider his
29.15 motion. The trial judge dismissed Kilgore's 29.15 motion
because it was untimely and unverified. Kilgore v. State, 791
S.W.2d at 393-94. Kilgore appealed the dismissal, and the
Missouri Supreme Court affirmed. Id.
He now argues that other movants under the Rule
have been treated more favorably, and that the strict application of
the Rule's requirements to him denied him equal protection. He
cites three cases to support that contention, but none of those
cases concerns a movant similarly situated to Kilgore. See
State v. Ervin, 835 S.W.2d at 927-28; State v. Hamilton, 791 S.W.2d
789, 797-98 (Mo. 1990), cert. denied, 513 U.S. 1085 (1995);
Reuscher v. State, 887 S.W.2d 588, 590-91 (Mo. 1994) (en banc),
cert. denied, 514 U.S. 1119 (1995). We see no evidence that
Kilgore received unequal or arbitrary treatment in his 29.15
H. Ineffective Assistance of
Kilgore alleges that his counsel
rendered constitutionally ineffective assistance in several respects.
On none of those occasions did Kilgore's counsel fall below the
standard enunciated in Strickland v. Washington, 466 U.S. 668, 694
(1984). We reject this claim as well.
Kilgore charges that his counsel was
ineffective for failing to object when Renee Dickerson
testified that Willie Luckett was remorseful about the killing.
Kilgore argues that Dickerson's statements were inadmissible hearsay.
His counsel did, however, make a hearsay objection when Dickerson
was asked whether Luckett had said anything to express remorse, and
the trial court sustained defense counsel's objection.
The prosecution then rephrased the question to ask what Dickerson
herself observed. Not only did defense counsel object to
questions calling for hearsay, those objections were sustained.
We see no error indicating deficient performance by Kilgore's
counsel in this regard.
2. Failure to
The second error Kilgore
argues his counsel made was failing to request a continuance when
Renee Dickerson was endorsed as a witness. Kilgore's trial
counsel objected to Dickerson's testimony on the basis of surprise
and subjected her to thorough cross-examination. Again, we see
no indication that the outcome of the trial would have been
different had counsel made such a request. Kilgore does not indicate
what favorable evidence could have been developed if a continuance
had been granted.
Kilgore argues that his counsel
failed to investigate adequately the "coerced statement," and
presumably the coercion itself. The District Court found that
counsel did file a motion to suppress the statement, which was
denied by the trial judge. Kilgore has not come forward with any
evidence of what his lawyer would have discovered in a more
extensive investigation. As is noted above, Kilgore has
offered no statements by witnesses (other than himself) to the
alleged police coercion or to Kilgore's resulting injuries.
Two of those witnesses are his mother and aunt,
who testified during the penalty phase of the trial, but did not
mention any coercion or resulting physical injury. We again
have no evidence of how the outcome of the proceedings might have
been different had counsel made different choices. Accordingly,
we agree with the District Court's conclusion that there was no
Kilgore argues his counsel should
have requested individual voir dire. The District Court
rejected this claim because there is no indication in the record
that group questioning of potential jurors was insufficient, or that
the composition of the jury would have been different had jurors
been questioned individually. Again, there is no showing of
Strickland prejudice, and we affirm.
court instructed Kilgore's jury on two offenses: first-degree
(capital) murder and second-degree murder. Kilgore argues that
the failure to instruct the jury on the additional offense of second-degree
felony murder violated his constitutional rights under Beck v.
Alabama, 447 U.S. 625 (1980).
As an initial matter, it is difficult to discern
from Kilgore's brief whether the claim he asserts is a free-standing
Beck claim, or a claim that his lawyer's failure to attempt to cure
the alleged Beck violation at trial constitutes ineffective
assistance of counsel. Kilgore includes this claim in the
section of his brief concerning ineffective assistance, but does not
address his lawyer's performance as such.
Instead, he argues that the failure to instruct
the jury on second-degree felony murder violated his rights to due
process, equal protection, and freedom from cruel and unusual
punishment. Since the issue was presented to the District
Court as an ineffective-assistance claim, and the District Court
decided it as such, we too will treat it as an
Kilgore argues that
his trial counsel should have requested a second-degree felony-murder
instruction. The District Court held that Kilgore could not
show prejudice sufficient to satisfy Strickland. The District
Court reasoned, on the basis of Missouri state courts' treatment of
the issue, that since the jury had the option of convicting
Kilgore of first-degree murder, second-degree murder, or nothing,
and convicted him of first-degree murder, there was no harm in
failing to give the second-degree felony murder instruction.
The jury had the option of convicting Kilgore of
a lesser offense, and did not. They must have found, the
reasoning continues, evidence of the deliberation which separates
first-degree from second-degree murder. Therefore, the jury
never would have convicted him of any lesser offense, and the
absence of the instruction was harmless. See State v. Petary,
781 S.W.2d 534, 544 (Mo. 1989) (en banc), vacated on other grounds,
494 U.S. 1075, affirmed on remand, 790 S.W.2d 243, cert. denied,
498 U.S. 973 (1990).
This analysis might not hold
true if the lesser-included-offense instruction did not make sense;
a crime which carried a drastically lesser sentence would leave the
jury with something dangerously close to the all-or-nothing choice
prohibited by Beck.
In this case, however, the jury was given a
reasonable second option, and one which was supported by the facts.
Kilgore argues that when a defendant is tried for an offense which
carries the death penalty, the trial court must submit to the jury
all lesser included offenses supported by the record. This is
not the law. In Schad v. Arizona, 501 U.S. 624, 645-48 (1991),
the Supreme Court held that Beck did not require a trial court to
instruct on all possible lesser-included offenses. See also
Reeves v. Hopkins, 102 F.3d 977 (8th Cir. 1996); Six v. Delo, 94
F.3d 469, 478 (8th Cir. 1996), cert. denied, 117 S. Ct. 2418 (1997).
In Schad, the trial court instructed the jury on
capital murder and on second-degree murder. Schad argued that
Beck required that a robbery instruction also be given. The
Supreme Court rejected the argument, holding that "[t]his central
concern of Beck simply is not implicated . . . for petitioner's jury
was not presented with an all-or-nothing choice." Id. at 647.
We are satisfied, in this case, that the jury had a real choice, and
that Kilgore cannot show Strickland prejudice. We agree with
the District Court's analysis.
Kilgore's brief lists several other
reasons he believes his counsel rendered constitutionally deficient
performance. Appellant's Br. 35. He has presented arguments,
beyond the mere listing of the alleged error, to this Court
about only a few, which are addressed above. The District
Court addressed and rejected each of his other arguments, and
Kilgore has offered us no reason why the District Court erred in its
In each instance, the District Court held that at
least one of the components of the Strickland standard was not met.
We see nothing in the record before us to cast doubt upon the
District Court's conclusions, and for the sake of brevity will not
repeat that conclusion over and over again here.
I. Proportionality Review
Kilgore asserts that the Missouri Supreme Court's review of the
proportionality of his sentence violated his right to due process.
The Missouri legislature mandates such a review of all cases where
the death sentence is imposed in Missouri courts. Mo. Rev.
Stat. 565.035. While the review is not mandated by the
federal Constitution, once in place it must be conducted
consistently with the Due Process Clause.
Kilgore argues that the Missouri Supreme Court
conducts arbitrary review of prior cases and sentences, intent on "automatically
affirm[ing] death sentences" rather than on meaningful comparison,
and thereby fails to meet the requirements of the Missouri statute.
Appellant's Br. 48. He also argues that the state courts do
not maintain an adequate database of cases since May 1977 where
death sentences or life sentences without parole were imposed, and
that the inadequacy of the database further undermines meaningful
We have considered and rejected this argument
before. The State Supreme Court in this case did conduct a
comparison of Kilgore's case with similar cases, and concluded that,
against the backdrop of other Missouri cases, the death penalty was
not disproportionate to the crime of which Kilgore was convicted.
State v. Kilgore, 771 S.W.2d at 69-70; id. at 70 (Blackmar, J.,
concurring). We will not, in such a case, look behind the
Missouri Supreme Court's conclusion or consider whether that court
misinterpreted the Missouri statute requiring proportionality review.
Bannister v. Delo, 100 F.3d 610, 627 (8th Cir. 1996), cert. denied,
117 S. Ct. 2526 (1997). We see no constitutional error.