State of Missouri v. John Middleton
Missouri Supreme Court Case Number
John Middleton was a user and dealer of methamphetamine. On June 10,
1995, police arrested several people in Harrison County, Missouri, for
possession and sale of the drug. Middleton was not one of the people
About ten days after
the Harrison County arrests, Middleton told a friend that "the snitches
around here are going to start going down." Middleton stated that he had
a "hit list" and that Alfred Pinegar was on it.
Two days after making
these statements, Middleton told the same friend that he was "on his way
to Ridgeway, Missouri, to take Alfred Pinegar fishing."
Alfred Pinegar was also
a dealer of methamphetamine and was associated with Middleton as a
fellow drug dealer. Pinegar lived with his fiancé Priscilla Hobbs in
Davis City, Iowa, just north of Harrison County, Missouri.
On June 23, 1995, the
day of Pinegar's murder, Hobbs was driving toward her home in Davis City
when she saw Middleton and his girlfriend Maggie Hodges in a white
Chevrolet 4x4 pickup traveling in the opposite direction. Hobbs noticed
that Hodges was sitting in the middle of the truck seat instead of in
the right passenger's seat.
When Hobbs reached her
home, Pinegar was not there and the yard had been partly mowed, as if
Pinegar stopped in the middle of the job. Pinegar habitually carried a
twelve-gauge shotgun, and that shotgun and about two hundred dollars
were missing from the home.
Around noon that same
day, Wesley Booth was working in the sporting goods department of a Wal-Mart
store in Bethany, Missouri. He was approached by Hodges, Middleton, and
another man, presumably Pinegar.
Middleton asked Booth
for six boxes of nine-millimeter shells and two boxes of twelve-gauge "double-ought"
buckshot. Middleton paid cash for the ammunition. During the entire
transaction Middleton was standing at the counter across from Booth.
Middleton, Hodges, and
Pinegar left Wal-Mart and drove several miles northeast of Bethany near
the town of Ridgeway where they parked in a field. Pinegar got out of
the truck and began to run when he saw Middleton raise the twelve-gauge
shotgun. Middleton shot Pinegar twice in the back. Middleton then
delivered the fatal wound to Pinegar, shooting him in the face.
Middleton dumped Pinegar's body over a fence.
After committing the
murder, Middleton and Hodges went back to the Wal-Mart store in Bethany
to return the nine-millimeter ammunition.
John Middleton - Missouri Death Row
Scheduled Execution for July 30, 2008
Randy Hamilton and Stacey Hodge and Iowa resident Alfred Pinegar
The Crime: Victim Alfred
John Middleton was a user and dealer of
methamphetamine. On June 10, 1995, police arrested several people in
Harrison County, Missouri, for possession and sale of the drug.
Middleton was not one of the people arrested. About ten days after the
Harrison County arrests, Middleton told a friend that "the snitches
around here are going to start going down." Middleton stated that he had
a "hit list" and that Alfred Pinegar was on it. Two days after making
these statements, Middleton told the same friend that he was "on his way
to Ridgeway, Missouri, to take Alfred Pinegar fishing."
Alfred Pinegar was also a dealer of methamphetamine
and was associated with Middleton as a fellow drug dealer. Pinegar lived
with his fiancé Priscilla Hobbs in Davis City, Iowa, just north of
Harrison County, Missouri. On June 23, 1995, the day of Pinegar's murder,
Hobbs was driving toward her home in Davis City when she saw Middleton
and his girlfriend Maggie Hodges in a white Chevrolet 4x4 pickup
traveling in the opposite direction. Hobbs noticed that Hodges was
sitting in the middle of the truck seat instead of in the right
passenger's seat. When Hobbs reached her home, Pinegar was not there and
the yard had been partly mowed, as if Pinegar stopped in the middle of
the job. Pinegar habitually carried a twelve-gauge shotgun, and that
shotgun and about two hundred dollars were missing from the home.
Around noon that same day, Wesley Booth was working
in the sporting goods department of a Wal-Mart store in Bethany,
Missouri. He was approached by Hodges, Middleton, and another man,
presumably Pinegar. Middleton asked Booth for six boxes of nine-millimeter
shells and two boxes of twelve-gauge "double-ought" buckshot. Middleton
paid cash for the ammunition. During the entire transaction Middleton
was standing at the counter across from Booth.
Middleton, Hodges, and Pinegar left Wal-Mart and
drove several miles northeast of Bethany near the town of Ridgeway where
they parked in a field. Pinegar got out of the truck and began to run
when he saw Middleton raise the twelve-gauge shotgun. Middleton shot
Pinegar twice in the back. Middleton then delivered the fatal wound to
Pinegar, shooting him in the face. Middleton dumped Pinegar's body over
a fence. After committing the murder, Middleton and Hodges went back to
the Wal-Mart store in Bethany to return the nine-millimeter ammunition.
Victims Randy Hamilton and Stacey Hodge
On June 10, 1995, several drug dealers were arrested
in Cainsville, Missouri. Middleton, a drug dealer, worried that
informants would implicate him as well. That afternoon, he told Tom
Constable that there were "some snitches that should be taken care of,"
because he did not want to go back to prison. He mentioned several names,
including Randy "Happy" Hamilton.
The next day, Middleton and his girlfriend, Maggie
Hodges, met Hamilton and Stacey Hodge on a gravel road. Stacey Hodge was
Hamilton's girlfriend. Middleton shot Hamilton in the back once with an
SKS rifle, and shot Stacey Hodge in the back three times. Middleton then
shot Hamilton in the head, killing him. Maggie Hodges killed Stacy Hodge
by shooting her in the head with another SKS rifle. Both bodies were
placed in the trunk of Hamilton's car. Middleton drove the car, looking
for a place to dispose of the bodies. Hodges followed in a truck.
While driving around, Middleton saw Danny Spurling.
Middleton -- covered in blood and driving Hamilton's car -- said that he
had "taken care" of Hamilton. He asked Spurling what to do with the
bodies, indicating that he might burn them in Hamilton's old house. The
next morning, Middleton gave Spurling the car stereo from Hamilton's car,
and said that "they were really going to freak out when they found those
two." Middleton had a written list of names, and asked if Spurling knew
anyone on the list.
About a week and a half later, Middleton told Richard
Pardun that "there was a narc around and they were going to take care of
it." He said that he had a "hit list," mentioning several names on it,
including Hamilton, Alfred Pinegar, (FN1) and William Worley. Middleton
offered Pardun $3,500 to set up a meeting with Worley.
On June 25, 1995, John Thomas was at Middleton's
house, discussing informants. Middleton listed several people who "needed
to be taken care of," including Hamilton, Pinegar, and Worley. Thomas
noticed two SKS rifles and a box belonging to Hamilton. When Thomas
asked about the box, Middleton replied, "the guy who owned that box
wouldn't be needing it no more."
About the same time, Middleton visited Dennis Rickert
in Iowa. Middleton told Rickert: "I'd knowed 'Happy' for 15 [years]. He
knew enough to put me away for life. I done 'Happy.'" Middleton also
gave Rickert several guns, including two SKS rifles, which Rickert later
turned over to the police.
Middleton was arrested for another murder (Pinegar's)
in late June 1995. On July 10, 1995, Hamilton's car was discovered in
the woods where it had been abandoned. The car stereo was missing. The
victims' decomposed bodies were in the trunk. Bullet fragments taken
from Stacy Hodge's body displayed class characteristics consistent with
the SKS rifles that Middleton gave Rickert.
While awaiting trial in the Harrison County jail,
Middleton confessed to fellow inmate Douglas Stallsworth. Stallsworth
testified that Middleton described the murders, admitted killing
Hamilton and Hodge because they were informants, and acknowledged hiding
their bodies and taking the rifles to Iowa.
The Missouri Supreme Court has postponed what would
have been the state's first execution in nearly three years, to allow
further legal challenges to its lethal-injection protocol.
The court last month set a July 30 execution date for
John Middleton, but issued a stay of execution Friday after learning
that Middleton was seeking to join a federal lawsuit by five other death-row
That suit challenges Missouri's execution protocol as
unconstitutional, alleging that the state has a history of using unfit,
Missouri has not executed an inmate since Marlin Gray,
a convicted killer, was put to death in October 2005. Another killer,
Michael Taylor, was to be next, but the court granted a last-minute stay
in February 2006.
Nationwide, executions were on hold while Taylor and
other inmates challenged constitutionality of the lethal injection. In
Taylor's suit, the surgeon who supervised Missouri's lethal injection
testified that he was dyslexic.
A Post-Dispatch investigation revealed that the
surgeon, Alan R. Doerhoff, had been sued for malpractice more than 20
times and publicly reprimanded by the State Board of Healing Arts.
In April, the U.S. Supreme Court upheld the
constitutionality of Kentucky's lethal injection protocol, opening the
door for states to resume executions.
But challenges continued in Missouri, where a federal
judge in Kansas City ruled that the Supreme Court's ruling in the
Kentucky case did not address the concerns raised about the fitness of
Missouri's execution team.
United States Court of Appeals for
the Eighth Circuit
John Middleton, Appellant
Don Roper, Appellee
August 18, 2007
Appeal from the United States District Court for the
Eastern District of Missouri.
Submitted: June 14, 2007
Filed: August 17, 2007
Before LOKEN, Chief Judge, ARNOLD and
COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.
John Middleton was convicted of the
first-degree murder of Alfred Pinegar and sentenced to death by a
Missouri trial court. The Supreme Court of Missouri affirmed the
conviction and sentence on direct appeal, State v. Middleton ,
995 S.W.2d 443 (Mo. 1999) (" Middleton I "), and subsequently
affirmed the denial of his motion for post- conviction relief.
Middleton v. State , 103 S.W.3d 726 (Mo. 2003) ( Middleton II
). Middleton applied for a writ of habeas corpus in federal court under
28 U.S.C. § 2254. The district court1 denied relief on all
thirty-two grounds claimed, but granted a certification of appealability
on four issues. We affirm.
We recite the facts as set forth by
the Supreme Court of Missouri in its opinion affirming the denial of
post-conviction relief. See 28 U.S.C. § 2254(e). On June 10,
1995, police arrested several individuals in Harrison County, Missouri,
on methamphetamine-related charges. John Middleton, a local
methamphetamine user and dealer, was not arrested at that time. About
ten days later, he told a friend that "the snitches around here are
going to start going down." He said he had a "hit list," which included
Alfred Pinegar, another methamphetamine dealer and an associate of
Middleton's. Two days after making these comments, Middleton told the
same friend that he was "on his way to Ridgeway, Missouri, to take
Alfred Pinegar fishing."
Pinegar lived with his fiance,
Priscilla Hobbs, in Davis City, Iowa, just north of Harrison County. On
June 23, 1995, Hobbs passed Middleton on the road on her way to Davis
City. Middleton and his girlfriend were in a white Chevrolet pickup
truck. When Hobbs arrived at home, Pinegar was gone, and the yard had
been only partly mowed. Also missing were about $200 and a twelve-gauge
shotgun that Pinegar habitually carried.
Around noon of that day, Middleton
entered a Wal-Mart in Bethany, Missouri, with his girlfriend, Maggie
Hodges, and a man believed to be Pinegar. They approached the sporting
goods department where Middleton purchased six boxes of nine-millimeter
ammunition and two boxes of twelve-gauge buckshot.
After leaving Wal-Mart, the three
drove several miles to the vicinity of Ridgeway, where they parked in a
field. When Middleton brandished Pinegar's shotgun, Pinegar fled.
Middleton shot him twice in the back and then killed him with a shot to
the face. Middleton dumped Pinegar's body over a fence.
Middleton and Hodges then returned to
the Bethany Wal-Mart, where Middleton exchanged the nine-millimeter
rounds for ammunition of another caliber. Later in the afternoon, Gerald
Parkhurst saw Middleton and Hodges standing beside their pickup on a
road near Bethany. Explaining that the truck had broken down, Middleton
and Hodges asked for a ride. Parkhurst agreed. The couple took five or
six guns, including the shotgun, out of the pickup truck and placed them
in Parkhurst's car. Parkhurst drove them to Spickard, Missouri, where
they took the guns and left.
On June 25, 1995, John Thomas visited
Middleton to discuss possible drug informants. Middleton said that "something
had to be done about them." He told Thomas that he had Pinegar's shotgun
and that Pinegar "wouldn't be needing it no more." The following day,
Pinegar's body was discovered. Police also found at the crime scene a
piece of leather fringe, an empty box of twelve-gauge shells, a pair of
sunglasses with a missing lens, and a small plastic clock.
Several months later, while in jail,
Middleton admitted to a fellow inmate that he killed Pinegar out of fear
that Pinegar would "snitch" on him. Middleton described the murder to
the other inmate, and said he was worried that he may have left some
fringe from his leather jacket at the scene.
Middleton was tried and convicted of
the first-degree murder of Pinegar. He presented no evidence in his
defense in the guilt phase of the trial. In the punishment phase, the
State presented evidence that he had subsequently murdered one Randy
Hamilton and his girlfriend, Stacey Hodge, as part of his effort to
eliminate informants. The jury recommended a death sentence, and the
circuit court imposed it. Later, in a separate trial, Middleton was also
sentenced to death for the other two murders. See Middleton v. Roper
, 455 F.3d 838 (8th Cir. 2006), cert. denied , 127 S. Ct. 980
Under the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), a federal
court may grant a writ of habeas corpus only if the state court's
(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. "A decision is 'contrary to' federal law . . . if a state
court has arrived 'at a
conclusion opposite to that reached by
[the Supreme Court] on a question of law' or if it 'confront[ed] facts
that are materially indistinguishable from a relevant Supreme Court
precedent' but arrived at an opposite result." Davis v. Norris ,
423 F.3d 868, 874 (8th Cir. 2005) (quoting Williams v. Taylor ,
529 U.S. 362, 405 (2000)). "A state court unreasonably applies clearly
established federal law when it 'identifies the correct governing legal
principle from [the Supreme] Court's decisions but unreasonably applies
that principle to the facts of the prisoner's case.'" Id. (quoting
Williams , 529 U.S. at 413). The factual findings of the state
courts are presumed correct, and the applicant has the burden to rebut
this presumption by clear and convincing evidence. 28 U.S.C. §
Middleton first claims that he was
denied his right to effective assistance of counsel and to due process
of law when the state trial court refused to grant his requests for a
continuance of the trial. Middleton complains that the State endorsed
twenty-three new witnesses only three weeks prior to trial, and that as
a result, his counsel were unable adequately to prepare his defense. He
contends that counsel were forced to conduct depositions in the evening
during the trial instead of readying themselves for the following day's
cross examinations, and that their effectiveness at trial suffered as a
By the time Middleton went to trial,
about a year and four months had elapsed since an information was filed
against him. His first counsel entered her appearance the day after the
information was filed. In June 1996, eight months after the information
was filed, his counsel requested and received a continuance from October
7, 1996, to February 24, 1997. Two more attorneys joined Middleton's
team in the summer or early fall of 1996. Middleton moved for a
continuance several times during the final three weeks before trial, but
the trial court adhered to the scheduled trial date in February 1997.
Middleton's first request for a
continuance, made three weeks before the February trial date, argued
that counsel were unable to complete their preparation due to the
unexpected length of depositions, the need to defend against accusations
of two additional murders in the penalty phase, the recent discovery of
additional reports and evidence, and the fact that some of the witnesses
were difficult to locate. The trial court denied the motion, saying that
"this is the kind of case that never would be ready for trial," because
"there are always other witnesses to find or discovery or some new facet
that comes up or something." (T. Tr. 615).
The court also reasoned that it was
required to recognize the speedy trial rights of the defendant, who had
been in confinement for an extended period of time. After the State
endorsed its new witnesses, the trial court found that the defense would
not be prejudiced by the endorsement and denied a second motion to
continue, but granted Middleton leave to object to the presentation of
the witnesses if unforeseen discovery problems arose. In a third motion
to continue that was filed five days before trial, Middleton's lawyers
argued that they were still not prepared to go to trial, citing a
potential conflict of interest over the representation of a prosecution
witness, the asserted unavailability of their own recently-endorsed
penalty phase expert witness, continuing efforts to obtain discovery
materials and other information from the State, and the need to have
certain fiber evidence analyzed.
The court denied the motion saying
that "even if we continued it for six months, right before trial there
are always those crises and problems and things that arise, and no
matter how you went, six months or a year, you would have problems of
that kind and that nature." (T. Tr. 758). The court concluded that "the
case is in the stage that it can be tried with fairness to Mr. Middleton,"
but pledged to consider "additional protections" if Middleton raised
"particular instances where relief is required from the Court" to ensure
a fair trial. ( Id. ).
At trial, the State eventually called
eleven of the twenty-three late-endorsed witnesses to testify. Middleton
did not renew an objection to several of these witnesses, and others
testified only briefly regarding perfunctory matters, such as the chain
of custody of physical evidence. The court eventually granted
Middleton's motion to exclude the testimony of the witness with the
asserted conflict of interest. The court denied objections to the
testimony of the remaining late-endorsed witnesses.
On direct appeal, the Supreme Court of
Missouri held that the trial court did not abuse its discretion by
denying the motions to continue. The court observed that many of the
twenty-three witnesses endorsed shortly before trial were "chain-of-
custody" witnesses who verified the proper handling of physical evidence,
that others already had been deposed by the defense or had testified in
pre-trial proceedings, and that still others had been endorsed
previously by the prosecution or the defense, or at least had been
identified in police reports. The court distinguished its precedents in
which the State failed to disclose key evidence until the morning of
trial, and determined that in this case, Middleton had not established
that he was prejudiced by the denial of his requests for a continuance.
Middleton argues that the trial
court's decisions resulted in a violation of his rights under the Sixth
and Fourteenth Amendments, and that the state supreme court unreasonably
applied clearly established law in denying relief. Two Supreme Court
precedents principally govern an accused's constitutional right to a
continuance. In Ungar v. Sarafite , 376 U.S. 575 (1964), a case
involving a criminal contempt proceeding against a witness in a criminal
trial, the Court opined that "[t]here are no mechanical tests for
deciding when a denial of a continuance is so arbitrary as to violate
due process," indicating that "[t]he answer must be found in the
circumstances present in every case, particularly in the reasons
presented to the trial judge at the time the request is denied." Id
. at 589.
The Court explained that not every
denial of a request for more time violates due process, even if the
consequence of the ruling is that a party fails to offer evidence or is
compelled to defend without counsel. On the other hand, the Court
allowed that "a myopic insistence upon expeditiousness in the face of a
justifiable request for delay can render the right to defend with
counsel an empty formality." Id . In Ungar , the Court
held that the trial court's denial of a motion for continuance on the
day of the scheduled contempt hearing did not deprive the defendant of
due process, even though counsel said that he was contacted only three
days earlier and was unfamiliar with the case. Id . at 590.
Subsequently, in Morris v. Slappy
, 461 U.S. 1 (1983), the Court again emphasized that "[t]rial judges
necessarily require a great deal of latitude in scheduling trials," and
explained that "[n]ot every restriction on counsel's time or opportunity
to investigate or to consult with his client or otherwise to prepare for
trial violates a defendant's Sixth Amendment right to counsel." Id
. at 11. The governing standard for the Sixth Amendment, the Court
declared, is that "only an unreasoning and arbitrary 'insistence upon
expeditiousness in the face of a justifiable request for delay' violates
the right to the assistance of counsel." Id. at 11-12 (quoting
Ungar , 376 U.S. at 589).
These decisions of the Supreme Court
state the governing constitutional rule at a high level of generality.
In applying the deferential standard of AEDPA, "[t]he more general the
rule, the more leeway courts have in reaching outcomes in case-by- case
determinations." Yarborough v. Alvarado, 541 U.S. 652, 664
(2004); see also Carey v. Musladin , 127 S. Ct. 649, 654
(2006). Granting that leeway to the state supreme court, we agree with
the district court that the resolution of Middleton's claim was not an
unreasonable application of Supreme Court precedent.
The Supreme Court of Missouri
reasonably could conclude that the decisions of the state trial court
recounted above were not an "unreasoning and arbitrary" insistence on
proceeding to trial in the face of a justifiable request for delay.
See Slappy , 461 U.S. at 11. The trial court determined that
Middleton could receive a fair trial without a continuance, and the
state supreme court provided an expanded rationale for this conclusion,
based on the nature of the witnesses who were endorsed by the
prosecution three weeks before trial. As to six late-endorsed witnesses
about whom the defense raised objections during trial, the prosecution
argued either that the witnesses were perfunctory or that defense
counsel already had information about the witnesses through previous
hearings and police reports, and the trial court overruled the
The state supreme court accepted the
State's contention, finding that the disputed witnesses were simply "chain
of custody" witnesses, had already been deposed, had testified in
pretrial proceedings, or had been identified in police reports.
Middleton II , 995 S.W.2d at 465. Middleton has not rebutted that
factual determination. See 28 U.S.C. § 2254(e)(1). Middleton now
advances general arguments that his counsel were hampered in their
ability to prepare by the late disclosure of witnesses for the
prosecution, but he has identified no specific instance in which
additional time for preparation would have improved the performance of
counsel or the fairness of the trial. See Wise v. Bowersox, 136
F.3d 1197, 1207 (8th Cir. 1998) (holding that "inadequate preparation in
itself does not prejudice a defendant," and that a habeas applicant must
show that counsel's poor preparation resulted in substandard and
prejudicial performance). We agree with the district court that "counsel
vigorously and competently" represented Middleton throughout the trial,
and that the Supreme Court of Missouri reasonably concluded that the
trial court's denial of a continuance did not deprive Middleton of a
fair trial or effective assistance of counsel.
Middleton's second claim is that the
trial court, by reciting the Missouri Approved Jury Instructions at the
penalty phase rather than a set of instructions requested by Middleton,
precluded the jury from giving consideration to mitigating evidence, as
required by the Eighth Amendment. The instructions employed by the trial
court first asked the jury to determine whether any statutory
aggravating factors had been proven beyond a reasonable doubt. (App. at
903). If so, then the jury was instructed to determine "whether there
are facts and circumstances in aggravation of punishment which, taken as
a whole, warrant the imposition of a sentence of death upon the
defendant." ( Id . at 904). Next, the jury was advised that if it
found that the aggravating circumstances "warrant the imposition of a
sentence of death," then it "must determine whether there are facts or
circumstances in mitigation of punishment which are sufficient to
outweigh the facts and circumstances in aggravation of punishment." (
Id . at 905). This instruction required the jury to consider two
statutory mitigating factors, as well as "any other facts or
circumstances which you find from the evidence in mitigation of
punishment." ( Id .).
Middleton contends that the jury was
likely to misunderstand these instructions, and that his "simple, clear,
and understandable" alternatives should have been given instead. He
argues that the court's instructions were structured in a way that
precluded the jury from giving effect to mitigating evidence. In
addition to a general argument of confusion, he asserts that the
instruction on aggravating circumstances called upon the jury to make
the "death decision in isolation, solely on the basis of aggravating
circumstances," and that the jury was not told until the next
instruction, "after they have already decided that death is the
appropriate punishment," that they should consider mitigating
On direct appeal, the Supreme Court of
Missouri held that the trial court did not err by using the Missouri
Approved Instructions rather than Middleton's proposed alternatives. The
court concluded that the catch-all paragraph on mitigating circumstances
was sufficient to permit the jury to give effect to any mitigating
evidence. Middleton I , 995 S.W.2d at 464.
We have held previously, even without
the deferential lens of AEDPA, that the Missouri Approved Instructions
are consistent with the Eighth Amendment. In Ramsey v. Bowersox ,
149 F.3d 749, 757 (8th Cir. 1998), we held that the approved
instructions did not improperly limit the jury's consideration of
mitigating evidence, and observed that the Supreme Court had approved a
similar set of instructions in Buchanan v. Angelone , 522 U.S.
269, 276-77 (1998). In Bolder v. Armontrout , 921 F.2d 1359, 1367
(8th Cir. 1990), we rejected an argument that the order and phrasing of
the instructions on aggravating and mitigating circumstances improperly
shifted the burden of proof to the defendant to present mitigating
evidence to avoid the death penalty.
Middleton's argument is phrased a bit
differently, but we again perceive no constitutional flaw in the
instructions, and thus no unreasonable application of established law.
Viewing the instructions as a whole rather than in artificial isolation,
see Boyde v. California , 494 U.S. 370, 378 (1990), we see no
reasonable likelihood that the jury was precluded from considering
mitigating evidence. Although the jury was asked first to determine
whether aggravating circumstances existed and whether they were
sufficient to warrant the death penalty, that was a permissible step to
narrow the class of defendants eligible for the death penalty. See
Lowenfield v. Phelps , 484 U.S. 231, 244-46 (1988). The instructions
were clear that the decision on aggravating circumstances did not
constitute the ultimate selection of the appropriate punishment for this
defendant. See Tuilaepa v. California , 512 U.S. 967, 972 (1994).
Rather, the jury was then required to
consider mitigating evidence, and to impose a term of life imprisonment
if the mitigating circumstances were sufficient to outweigh the
aggravating circumstances. This is a permissible means of allowing the
jury to give effect to mitigating evidence. See Kansas v. Marsh ,
126 S. Ct. 2516, 2522-24 (2006). Another instruction, moreover,
specifically explained that the jury was not compelled to fix
death as the punishment, even if the mitigating circumstances did not
outweigh the aggravating circumstances. (App. at 907). We conclude that
the state supreme court did not unreasonably apply Supreme Court
precedent in rejecting Middleton's Eighth Amendment claim.
In a related argument, Middleton
contends that his trial counsel were ineffective because they failed to
object to the pattern instructions and to present evidence of scientific
studies by Dr. Richard Wiener, a psychologist. According to Dr. Wiener,
his studies show that jurors do not understand the standard Missouri
instructions, that it is possible to improve juror comprehension by
rewriting the instructions, and that jurors who do not comprehend the
instructions may be more likely to impose the death penalty.
The state post-conviction trial court
found that Dr. Wiener's findings and conclusions were "not persuasive"
and did not establish that the Missouri pattern instructions were
confusing or misleading to the jury. Accordingly, the court ruled that
trial counsel were not ineffective for declining to object to the
pattern instructions or in failing to present Dr. Wiener's studies. The
Supreme Court of Missouri summarily affirmed the trial court's ruling,
citing several decisions in which it had rejected similar arguments
based on Dr. Wiener's studies. Middleton II , 103 S.W.3d at 743 (citing
Lyons v. State , 39 S.W.3d 32, 43-44 (Mo. 2001); State v. Deck
, 994 S.W.2d 527, 542-43 (Mo. 1999); State v. Jones , 979 S.W.2d
171, 181 (Mo. 1998)). In Deck, for example, the state supreme
court rejected Dr. Wiener's conclusion that jurors were unlikely to
understand the concept of mitigation, reasoning that "the term 'mitigating'
is always contrasted with the term 'aggravating' so that no reasonable
person could fail to understand that 'mitigating' is the opposite of 'aggravating.'"
994 S.W.2d at 542-43. In Lyons , the court concluded that the
language of the pattern instructions is "plainly understandable." 39 S.W.3d
We conclude that the Supreme Court of
Missouri did not unreasonably apply Strickland v. Washington ,
466 U.S. 668 (1984), in holding that trial counsel were not ineffective
for failing to rely on the Wiener studies. We already have explained
that the Missouri pattern instructions give the jury an adequate
opportunity to give effect to mitigating evidence, and we agree with the
state supreme court that when the instructions are viewed as a whole,
they are understandable. Because reliance on the Wiener studies would
have been unavailing, it was reasonable for the state court to hold that
counsel reasonably declined to present the studies and that Middleton
suffered no prejudice.
Middleton's third contention is that
the trial court's admission of a videotape and photograph showing the
bodies of Middleton's murder victims in an uncharged case was so
unfairly prejudicial that it violated his rights under the Due Process
Clause. The disputed videotape shows the scene where the bodies of
Stacey Hodge and Randy Hamilton were discovered in the trunk of a car.
The district court found that the videotape was "admittedly gruesome,
showing the two victims' skeletized remains found a month after they had
been killed." Middleton v. Roper , No. 4:03CV543, 2005 WL
2298203, at * 35 (E.D. Mo. 2005).
On direct appeal, the Supreme Court of
Missouri held the trial court did not abuse its discretion in admitting
this evidence. Middleton I , 995 S.W.2d at 463. The court ruled
that the character and history of the defendant, including prior crimes
committed by the defendant, is admissible as relevant evidence in the
penalty phase of a capital trial. The court reasoned that the sole
account of how Hodge and Hamilton were murdered came from Stallsworth,
the jailhouse informant, and that the videotape and photograph
corroborated his testimony and helped the jury to understand Middleton's
prior acts for the purpose of determining his punishment for Pinegar's
The only Supreme Court precedent on
which Middleton relies is Donnelly v. DeChristoforo, 416
U.S. 637 (1974). In that case, the Court rejected a habeas petitioner's
claim for relief based on allegedly improper remark by a prosecuting
attorney, but established some general principles for application of the
Due Process Clause. The Court explained that the "process of
constitutional line drawing in this regard is necessarily imprecise,"
id . at 645, but emphasized that courts should observe the
distinction between "ordinary trial error of a prosecutor" and "egregious
misconduct" that amounts to a denial of constitutional due process.
Id . at 647-48.
The ultimate standard, as later
applied to determine whether the admission of disputed evidence at a
sentencing hearing violates the Due Process Clause, is whether the
evidence "so infected the sentencing proceeding with unfairness as to
render the jury's imposition of the death penalty a denial of due
process." Romano v. Oklahoma , 512 U.S. 1, 12 (1994). Under
AEDPA's habeas review, we consider whether the state supreme court's
rejection of Middleton's claim was an objectively unreasonable
application of Supreme Court precedent concerning the Due Process Clause.
Whether the evidence was properly admissible under Missouri law is "no
part" of our review, because habeas review does not lie to correct
alleged errors of state law. Estelle v. McGuire , 502 U.S.
62, 67-68 (1991).
The disputed videotape and photograph
in this case were relevant to prove Middleton's other criminal acts.
These acts, in turn, were relevant to the sentencing decision. See
Zant v. Stephens , 462 U.S. 862, 888 (1983); Wise v. Bowersox
, 136 F.3d at 1205-06. The photograph of Hodge's body was used by an
expert witness in describing her fatal injuries and corroborated
Stallsworth's testimony. The videotape of the bodies in the trunk
corroborated Stallsworth's account of Middleton's admissions.
Middleton contends that the videotape,
in particular, was cumulative of testimony from law enforcement officers,
but the Supreme Court has never held that the admission of indisputably
relevant evidence amounts to a denial of due process. Our own precedents,
which have upheld the admission of similar evidence against due process
challenges prior to AEDPA, provide support for the view that the state
court's application of Supreme Court precedent was at least objectively
reasonable. See Clark v. Wood , 823 F.2d 1241, 1246-47
(8th Cir. 1987) (holding no due process violation where trial court
admitted "graphic and detailed pictures" of a victim in an uncharged
murder, in addition to testimony of witnesses who described the scene
"in detail," because photographs were relevant to show circumstances or
background of the charged murder); Kuntzelman v. Black , 774 F.2d
291, 292 (8th Cir. 1985) (per curiam) (affirming denial of habeas relief
where trial court admitted "particularly gruesome" photographs of a
murder victim's body and body parts from an autopsy, because they were "arguably
relevant and probative" in showing the identity and condition of the
deceased, the location of the wound, and the defendant's intent);
Walle v. Sigler , 456 F.2d 1153, 1155 (8th Cir. 1972) (holding no
due process violation in trial court's admission of "gruesome"
photographs of uncleansed corpse, saying "it must be noted that this
condition is an inherent and inseparable part of the crime with which
this defendant was charged"). The Supreme Court's guidance in this area
is quite general, and we do not think the state supreme court
unreasonably applied those precedents in holding that the trial court's
evidentiary decisions did not amount to a denial of due process.
Middleton's final claims concern the
proportionality of his punishment. He contends that his sentence of
death is not proportionate to the punishment imposed in similar Missouri
cases, and that Missouri's system of proportionality review fails to
provide an appropriate comparison among cases. The Supreme Court of
Missouri rejected Middleton's challenges to proportionality review,
citing this court's decision that "Missouri's proportionality review
does not violate the Eighth Amendment, due process, or equal protection
of the laws." Middleton I , 995 S.W.2d at 468 (quoting Ramsey
, 149 F.3d at 754).
The Eighth Amendment does not require
proportionality analysis, Pulley v. Harris , 465 U.S. 37,
50-51 (1984), but we have said that once a State creates a right to
proportionality review, as Missouri has done, see Mo. Rev. Stat.
§ 565.035, then the State may not arbitrarily deny that right to a
particular defendant. Foster v. Delo , 39 F.3d 873, 882 (8th Cir.
1994). In this case, the Supreme Court of Missouri performed the
prescribed review, see Middleton I , 995 S.W.2d 467-68, and the
Constitution does not call for us to look behind that review. Walton
v. Arizona , 497 U.S. 639, 656 (1990), overruled on other grounds
by Ring v. Arizona , 536 U.S. 584, 589 (2002); Kilgore v.
Bowersox , 124 F.3d 985, 996 (8th Cir. 1997). Middleton contends
that the state supreme court should be required to compare similar cases
in which the death penalty was rejected or was not sought, and that it
should engage in a statistical or scientific comparison of cases. But we
may not consider whether the state court misinterpreted the relevant
state statute, McGuire , 502 U.S. at 67-68; Kilgore , 124
F.3d at 996, and "a defendant cannot 'prove a constitutional violation
by demonstrating that other defendants who may be similarly situated did
not receive the death penalty.'" United States v. Johnson
, No. 06-1001, 2007 WL 2163002, at *4 (8th Cir. July 30, 2007) (quoting
McClesky v. Kemp , 481 U.S. 279, 306-07 (1987)); see also
Getsy v. Mitchell , No. 03-3200, 2007 WL 2118956, at *7 (6th Cir.
July 25, 2007) (en banc). Accordingly, we hold that the state supreme
court's decision on proportionality review did not unreasonably apply
clearly established federal law as determined by the Supreme Court.
The judgment of the district court is
* * *
1 The Honorable Catherine D.
Perry, United States District Judge for the Eastern District of
John C. Middleton