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Status:
Executed
by lethal injection in Missouri on January 6,
1989
George C. "Tiny"
Mercer (August 31, 1944 –
January 6, 1989) was convicted of
the rape and murder of 22 year old
Karen Keeton in Belton, Missouri on
August 31, 1978. At the time of the
murder, Mercer had a charge pending
against him of raping a 17 year old
girl.
He was executed
at the age of 44 by the state of
Missouri by lethal injection. He
became the first person to be
executed in Missouri since 1976 when
the death penalty was reinstated.
Man Executed in Missouri for Killing Waitress
The New York Times
January 6, 1989
A convicted killer was
put to death by injection early today for
the murder of a tavern waitress, becoming
the first Missouri inmate executed since
1965.
The man, George Mercer,
44 years old, was injected at 12:03 A.M.,
lost consciousness three minutes later and
was pronounced dead at 12:09 A.M., the
authorities said. About a dozen
demonstrators carrying candles gathered
outside the Missouri State Penitentiary to
protest the execution.
On Thursday the United
States Supreme Court refused by a vote of 7
to 2 to stay the execution, and Gov. John
Ashcroft did not block it. Mr. Mercer was
the 105th person put to death in the United
States since the Supreme Court allowed
states to restore the death penalty in 1976.
Shocked by Denial of Stay
Mr. Mercer was convicted
of the 1978 rape and murder of Karen Keeton,
a 22-year-old tavern waitress at his home in
Belton, near Kansas City. He had been on
Missouri's death row longer than any other
inmate.
A prison spokesman said
that when the warden, Bill Armontrout, told
Mr. Mercer the stay had been denied, ''Bill
described it as sort of a look of shock.
Mercer did make the statement that it was in
the hands of the maker.''
Since October, Missouri
has scheduled four executions that were
halted by the courts, including one for Mr.
Mercer.
According to evidence at
his trial, friends brought Ms. Keeton to Mr.
Mercer as a ''birthday present.'' His 11-year-old
daughter was at home at the time of the
assault in which Mr. Mercer forced the woman
to engage in sex with him at gunpoint before
killing her. Found Religion in Prison
In a 1981 interview, Mr.
Mercer said he did not kill the woman but
that adverse publicity had helped convict
him. He said he had found religion in prison.
''The old Tiny is dead now,'' he said in
1981. ''He's buried. He's gone. I'm a new
man in my way of thinking, my attitude
toward life and everything. The Lord's done
this to me.''
State
of Missouri v. George C. Mercer
618 S.W. 2d 1 (Mo.banc.1981)
Case Facts:
The evidence supports defendant's conviction for
the murder of Karen Keeten, a 22-year-old white
female, in the early morning hours of August 31,
1978.
It established
that defendant, a 34-year-old white male, was drinking with friends
at the Blue Seven Lounge in Grandview, Missouri, the evening before.
Karen was working there as a waitress.
During the evening,
defendant made the comment that he would like to take her to bed.
Steven Gardner, a friend of defendant who was acquainted with Karen,
went up to the bar to talk to her. He returned a short time later
and said he and Karen were going to breakfast and would go to
defendant's house afterward.
Defendant left
with David Gee, another friend, and went to defendant's home in
Belton, Missouri, arriving there around 12:30 a. m. John Campbell
was at the house babysitting with defendant's ten-year-old daughter.
A short time later Gardner and Karen Keeton arrived.
After visiting for
some time defendant picked up a sawed-off double-barreled shotgun,
opened it to show the shells, walked over to Karen, tapped her on
the head with the gun, and told her to "get her ass upstairs."
When she hesitated
he grabbed her and pushed her to the stairway. She yelled for
Gardner to help. He responded, "Happy Birthday, Tiny," then turned
to the others and said, "Seconds." Karen's dress was tossed
downstairs with defendant telling Gardner to "put these clothes
where they go, you know where they go." Gardner put the clothes in a
closet and pocketed the money from her purse.
Defendant later
came downstairs; he was naked and had an erection. Gardner went
upstairs. Defendant drank beer for awhile, showered and returned to
the table to dry himself at which time he remarked what "a good
piece of ass" she was and that he was going to go back and "fuck her
in the butt."
Several minutes
later, Gardner yelled for David Gee to come upstairs. Gee, followed
by defendant and John Campbell, complied. Upstairs, defendant told
Karen, who was lying naked on the bed, to undress Gee and "start
sucking David Gee's dick." She performed as directed. After Gee
answered, "Pretty good", to defendant's question about her
performance, defendant said, "You leaky cunt, you'd better do it
better." When asked how she was doing now, Gee answered, "Better now."
Defendant, Gardner and Campbell returned downstairs.
At this time,
Karen stopped what she was doing, and Gee put his clothes on. Karen
asked what was going to happen to her; Gee attempted to reassure her.
When Gee returned downstairs, defendant told Campbell to get
upstairs so they would all be in it together. Campbell proceeded
upstairs and found Karen unclothed. She cried, and Campbell talked
with her, trying to console her. He too returned downstairs.
Defendant started
upstairs again as Gardner was leaving. He asked Gardner what he
wanted done with Karen and Gardner replied, "Kill the bitch."
Defendant said, "Okay, brother." Gardner asked if he would need any
help; defendant said no, he would get rid of the body where it would
not be found. Gardner and Gee left, defendant went upstairs, and
Campbell went to sleep downstairs.
Campbell was
suddenly awakened by defendant calling his name from upstairs. He
responded and found defendant straddling Karen's body with his hands
on her throat. Defendant screamed at Campbell to take her pulse.
Campbell grabbed the arm of Karen's seemingly lifeless body and
found a faint pulse. At the time he told defendant this, he could
smell human waste, which was all over the bed. Defendant, "hollered",
struck the left side of Karen's head, and said, "Die you bitch ...
This is a leaky cunt. Die." He continued strangling her, and again
screamed at Campbell to take her pulse. Campbell found no pulse.
When Campbell
reported this, defendant got off the bed, grabbed Karen's legs, and
pulled her off the bed. Defendant took the sheets and blanket to the
washing machine and told Campbell to wipe the waste off the floor.
Defendant came back and told Campbell to get his truck and put the
tailgate down so he could put Karen in it. After Campbell complied,
defendant brought the body down and put it in the truck. Campbell
and defendant climbed in the truck and Campbell started driving at
defendant's direction.
Finally defendant
had Campbell stop. Defendant got out and dumped the body over a
fence into a field. When he returned he told Campbell, "Now, if I'd
killed that leaky cunt 17-year-old like I did her ... I wouldn't
have been on any rape charges and things I'm on right now." At that
time, defendant had a rape charge pending against him filed by a 17-year-old
girl. Defendant and Campbell returned to defendant's house where
defendant gave Campbell the shotgun to hide, and burned Karen's
purse.
Three to four
weeks later Campbell and his attorney looked for and found the badly
decomposed body of Karen Keeton. They reported this to the
authorities. The body was identified by means of her teeth.
844 F.2d 582
George Mercer, Appellant, v.
Bill Armontrout, Warden, Missouri State Penitentiary,
Appellee.
No. 86-2593
Federal
Circuits, 8th Cir.
June 13, 1988
Before LAY, Chief
Judge, McMILLIAN and ARNOLD, Circuit Judges.
LAY, Chief Judge.
George Mercer was found guilty of
capital murder under Mo.Rev.Stat. Sec. 565.001
(1978)1
and sentenced to death after a five-day jury trial.
On appeal the judgment of conviction was affirmed.
State v. Mercer, 618 S.W.2d 1 (Mo.), cert. denied,
454 U.S. 933 , 102 S.Ct. 432, 70 L.Ed.2d 240
(1981).
Following his conviction, Mercer
filed a petition for a writ of habeas corpus in the
federal district court. After the matter was
remanded to the state for further proceedings,
Mercer renewed his petition in the federal district
court.2
The district court ultimately denied Mercer's
petition for habeas relief. 643 F.Supp. 1021 (1986).
Mercer now appeals to this court and seeks habeas
relief on three grounds: (1) insufficiency of the
evidence showing aggravating circumstances under
Missouri law; (2) improper selection of the jury;
and (3) admission into evidence of a prior
prosecution for rape. We affirm the denial of the
issuance of a writ of habeas corpus.
BACKGROUND
The evidence established that
George "Tiny" Mercer was drinking with several
friends at the Blue Seven Lounge in Grandview,
Missouri. Karen Keeton, the decedent, was a waitress
at the Blue Seven Lounge and Mercer mentioned to his
friends that he'd like to have sexual intercourse
with Keeton that evening.
One of Mercer's friends, Stephen
Gardner, knew Keeton and persuaded her to leave the
lounge with him. Later that night, Gardner brought
Keeton to Mercer's home. After being raped by Mercer
and Gardner, Keeton was forced at gunpoint to
perform fellatio on David Gee. Thereafter, Mercer
twice asked Steve Gardner what to do with her, and
Gardner instructed Mercer both times to kill her.
Mercer then straddled Keeton's body and choked her
to death with his hands.
After strangling Keeton, Mercer
put her body in the back of John Campbell's pickup
truck and ordered Campbell to drive. At some point
Mercer ordered the truck stopped, dragged Keeton's
body out of the truck, and hid it off to the side of
the road. As he returned from discarding Keeton's
body, Mercer remarked to Campbell that if he had
killed "that leaky cunt 17-year-old like I did her *
* * I wouldn't've been on any rape charges and
things I'm on right now."
At the time Mercer was found to
have raped and murdered Keeton, Mercer was also
being prosecuted for the rape of Debbie Middleton.
I. Agency as an Aggravating
Factor
One of the two aggravating
factors the jury relied upon in sentencing Mercer to
death was "agency," i.e., that Mercer was acting at
the direction of Gardner. Mo.Rev.Stat. Sec.
565.012.2(6) (1978).3
Agency is considered an aggravating factor under
Missouri law because such a killing is not done out
of passion or rage. A murder committed as another's
agent or employee is often motivated solely by money
or loyalty. See, State v. Mercer, 618 S.W.2d at 14 (Bardgett,
C.J., dissenting) and id. at 18 (Seiler, J.,
dissenting). Mercer argues that agency was not
established. Mercer also argues that because agency
was not established, one of the two aggravating
factors used is now invalid and, therefore, his
death sentence must be overturned.4
We disagree.
The jury had before it evidence
that Mercer turned twice to Gardner and asked him
what to do with Keeton. After Gardner instructed
Mercer to murder Keeton, Mercer strangled her. The
jury also had before it evidence that Gardner, Gee,
and Mercer worked together at Industrial Roofing
where Gardner was a foreman. After considering this
evidence, the jury found Mercer acted as Gardner's
agent.
The Missouri Supreme Court
affirmed the jury's findings. Id. at 11. This court
must presume that the state court's findings are
correct. Sumner v. Mata, 455 U.S. 591, 597-98, 102
S.Ct. 1303, 1306-07, 71 L.Ed.2d 480 (1982); 28 U.S.C.
Sec . 2254(d) (1982). Furthermore, Mercer has
not introduced convincing evidence to establish that
the jury's factual determination was clearly
erroneous. Rowe v. Lockhart, 736 F.2d 457, 460 (8th
Cir.1984).
Mercer now asserts, however, that
the brief conversation he had with Gardner is
insufficient to establish an agency relationship as
a matter of law. Mercer cites no authority for this
proposition. Aggravating factors are not
constitutionally invalid so long as there is a
factual basis for them, and so long as the
aggravating factors channel the jury's discretion.
Zant v. Stephens, 462 U.S. 862, 876-77, 103 S.Ct.
2733, 2742, 77 L.Ed.2d 235 (1983). We agree with the
district court that the jury permissibly could have
found agency.5
While we do not disturb the
jury's finding of agency as an aggravating factor,
Mo.Rev.Stat. Sec. 565.012.2(6), Mercer's argument on
the issue of agency also fails because there remains
an unchallenged aggravating factor. As a matter of
state law, where at least two aggravating
circumstances are found, the failure of one does not
mandate reversal or resentencing.
Under Missouri law, when a "jury
finds two or more aggravating circumstances, 'the
failure of one circumstance does not taint the
proceedings so as to invalidate the other
aggravating circumstance[s] found and the sentence
of death thereon.' " State v. Malone, 694 S.W.2d
723, 728 (Mo.1985) (quoting State v. LaRette, 648
S.W.2d 96, 102 (Mo.), cert. denied,
464 U.S. 908 , 104 S.Ct. 262, 78 L.Ed.2d 246
(1983)), cert. denied,
476 U.S. 1165 , 106 S.Ct. 2292, 90 L.Ed.2d 733
(1986); see also State v. Gilmore, 697 S.W.2d
172, 176 (Mo.1985) ("Where two or more statutory
aggravating circumstances are found by the jury,
failure of one circumstance does not invalidate the
other."), cert. denied,
476 U.S. 1178 , 106 S.Ct. 2906, 90 L.Ed.2d 992
(1986). In view of the ample state law
authority cited above, the Missouri Supreme Court
was justified in holding that the failure of one of
two aggravating circumstances does not require
reversal. State v. Mercer, 618 S.W.2d at 10 n. 5.
Moreover, in Barclay v. Florida,
463 U.S. 939, 958, 103 S.Ct. 3418, 3429, 77 L.Ed.2d
1134 (1983), the Supreme Court held that, as a
matter of constitutional law, improper consideration
of an aggravating factor may constitute only
harmless error. The Court wrote: "There is no reason
why the [state supreme court] cannot examine the
balance struck by the trial judge and decide that
the elimination of improperly considered aggravating
circumstances could not possibly affect the
balance." Id.
Likewise, in Zant v. Stephens,
462 U.S. at 891, 103 S.Ct. at 2750, the Court upheld
a death sentence even though one of the three
aggravating factors was held invalid. The Court
observed that imposition of capital punishment is
constitutional so long as the aggravating
circumstances relied upon genuinely narrow the class
eligible for the death penalty. Id. at 877, 103 S.Ct.
at 2742.
Despite the invalid aggravating
circumstances, the jury made an "individualized
determination on the basis of the character of the
individual and the circumstances of the crime." Id.
at 879, 103 S.Ct. at 2744. In addition, the state
supreme court reviewed the death sentence and held
that it was neither arbitrary, excessive, nor
disproportionate. Id. at 879-80, 103 S.Ct. at
2743-44.
In the instant case, the Missouri
Supreme Court has reviewed the sentence and found
that application of the death penalty "was not
imposed under the influence of passion, prejudice or
any other arbitrary factor." State v. Mercer, 618
S.W.2d at 10. Furthermore, the use of agency as an
aggravating factor narrows the class eligible for
the death penalty. We agree, therefore, with the
district court's decision to leave the finding of
agency undisturbed.
II. Jury Selection
A prospective juror who
categorically believes that death is never an
appropriate penalty can be disqualified for cause
because such a juror will not follow the trial
court's instructions. Wainwright v. Witt,
469 U.S. 412 , 433, 105 S.Ct. 844, 856, 83
L.Ed.2d 841 (1985).
While recognizing that jurors who
state unequivocally that they are opposed to the
death penalty can be removed for cause, Mercer
argues that jurors who, due to their religious
beliefs, merely equivocate on the issue of their
ability to follow the court's instructions cannot be
discharged. Witherspoon v. Illinois, 391 U.S. 510,
522-23, 88 S.Ct. 1770, 1776-77, 20 L.Ed.2d 776
(1968).
Mercer argues that venire member
Bumgarner, who was disqualified for cause, never
stated that he would ignore the court's instructions,
but rather that he was fundamentally opposed to the
death penalty.6
The Supreme Court noted in
Witherspoon that a trial court is permitted to
strike all jurors who indicate:
(1) that they would
automatically vote against the imposition of capital
punishment without regard to any evidence that might
be developed at the trial of the case before them,
or (2) that their attitude toward the death penalty
would prevent them from making an impartial decision
as to the defendant's guilt. Nor does the decision
in this case affect the validity of any sentence
other than one of death. Nor, finally, does today's
holding render invalid the conviction, as opposed to
the sentence, in this or any other case.
Witherspoon v. Illinois, 391 U.S.
at 522-23 n. 21, 88 S.Ct. at 1777 n. 21 (emphasis in
original).
The Supreme Court, however, held
later that less extreme jurors could also be removed
for cause. Wainwright v. Witt, 469 U.S. at 424-26,
105 S.Ct. at 852-53. In Witt, Johnny Paul Witt was
sentenced to death for murdering an eleven-year-old
boy. The conviction and death sentence were
overturned by the court of appeals because potential
juror Colby was removed for cause. Colby had engaged
in the following colloquy with the prosecutor:
"[Q. Prosecutor:] Now, let me ask
you a question, ma'am. Do you have any religious
beliefs or personal beliefs against the death
penalty?
"[A. Colby:] I am afraid
personally but not--
"[Q]: Speak up, please.
"[A]: I am afraid of being a
little personal, but definitely not religious.
"[Q]: Now, would that interfere
with you sitting as a juror in this case?
"[A]: I am afraid it would.
"[Q]: You are afraid it would?
"[A]: Yes, Sir.
"[Q]: Would it interfere with
judging the guilt or innocence of the Defendant in
this case?
"[A]: I think so.
"[Q]: You think it would.
"[A]: I think it would.
"[Q]: Your honor, I would move
for cause at this point.
"THE COURT: All right. Step down."
Tr. 266-67.
469 U.S. at 415-16, 105 S.Ct. at
848.
In deciding Witt, the Court
reaffirmed its holding in Witherspoon and stated
that, as a practical matter, prospective jurors
simply cannot be questioned adequately to establish
unmistakably whether they could vote for the death
penalty. Witt, 469 U.S. at 425, 105 S.Ct. at 852.
Nonetheless, the trial court, who is able to observe
the visage and demeanor of the prospective juror may
conclude that the juror will be unable "to
faithfully and impartially apply the law." Id. at
426, 105 S.Ct. at 853.
Thus, a trial court that
dismisses a prospective juror because that juror
will not follow instructions on the imposition of
the death penalty may not be reversed by an
appellate court absent clear and convincing evidence
that the trial court erred. Id. at 435, 105 S.Ct. at
857; 28 U.S.C. Sec . 2254.
Mercer alleges that the district
court committed reversible error by failing to
inquire whether juror Bumgarner could follow the law
despite his personal views. The Missouri Supreme
Court, however, found that Bumgarner's response was
unequivocal; he could not impose the death penalty
or at least would be substantially impaired in doing
so. State v. Mercer, 618 S.W.2d at 7. The district
court found no basis for overturning that factual
finding. We agree with the district court.
III. Introduction of Prior
Arrest
After Mercer strangled Keeton to
death, he put her body in the back of John
Campbell's truck. Campbell testified that Mercer
thereafter stated: "I wouldn't be in the trouble I'm
in today if I'd killed that other bitch on the
rape." After introducing this statement, the State
sought to corroborate Campbell's testimony by
introducing evidence that Mercer was indeed being
prosecuted for raping Debbie Middleton.
Mercer had allegedly raped
Middleton a month prior to raping and strangling
Keeton. The State desired to introduce evidence of
the prosecution for Middleton's rape because that
prosecution would both corroborate Campbell's
testimony and establish Mercer's motive for
murdering Keeton, i.e., a desire to avoid being
prosecuted for Keeton's murder.
The State was prepared to have
Middleton testify but Mercer's attorneys, wishing to
avoid the prejudicial effect of having Middleton
testify, agreed to a stipulation that Mercer was
currently being prosecuted for raping Middleton.
Mercer now claims that he was forced into making
this stipulation, and that admitting proof of the
prior prosecution violated his right to due process
and was fundamentally unfair. We disagree.
Both the Federal Rules of
Evidence and the Missouri Rules of Evidence allow
evidence of prior convictions but generally do not
allow into evidence prior arrests. See, e.g., State
v. Skinner, 734 S.W.2d 877, 885 (Mo.Ct.App.1987);
State v. Hansel 629 S.W.2d 509, 510 (Mo.Ct.App.1981);
Fed.Rs.Evid. 404(b), 609.
The trial court admitted the
prior prosecution into evidence on the theory that
it was relevant to Mercer's motive; Mercer had to
kill Keeton in order to silence her so that she
would not testify against him as Middleton had done.
Furthermore, Campbell had testified that Mercer said
he wished he had killed "that leaky cunt seventeen-year-old"
as he had Keeton. Introducing this stipulation
corroborated Campbell's testimony and explained the
importance of Mercer's statement.
Whether a prior prosecution for
rape should be admissible evidence is a question of
state law. Our review, as the district court noted,
Mercer, 643 F.Supp. at 1026-27, is limited to
determining whether there has been a violation of
Mercer's constitutional rights. Manning-El v. Wyrick,
738 F.2d 321, 323 (8th Cir.), cert. denied,
469 U.S. 919 , 105 S.Ct. 298, 83 L.Ed.2d 233
(1984).
In order for the admission of
evidence to warrant habeas relief, the trial court's
error must have been so egregious that it denied the
defendant his right to due process. To determine
whether the defendant has been denied due process,
the court must look at the totality of the
circumstances, Ellis v. Black, 732 F.2d 650, 658
(8th Cir.1984) and decide whether the error was so "
'gross' * * * 'conspicuously prejudicial' * * * or
otherwise of such magnitude that it fatally infected
the trial and failed to afford petitioner the
fundamental fairness which is the essence of due
process." Maggitt v. Wyrick, 533 F.2d 383, 385 (8th
Cir.) (citations omitted), cert. denied,
429 U.S. 898 , 97 S.Ct. 264, 50 L.Ed.2d 183
(1976).
Prior arrests are generally not
allowed into evidence because of their extreme
prejudicial value. State v. Mallett, 732 S.W.2d 527,
534-35 (Mo.), cert. denied, --- U.S. ----, 108 S.Ct.
309, 98 L.Ed.2d 267 (1987); C. McCormick, McCormick
on Evidence 557-58 (Lawyer's ed. 1984). Exceptions
have been generally recognized, however, where the
operative facts demonstrate a motive, plan, scheme,
lack of mistake, or identity (as in the case of a
signature crime). Hardy v. United States, 199 F.2d
704, 707 (8th Cir.1952); State v. Mallett, 732 S.W.2d
at 534-35; State v. Shaw, 636 S.W.2d 667, 671-72
(Mo.), cert. denied,
459 U.S. 928 , 103 S.Ct. 239, 74 L.Ed.2d 188
(1982); McCormick on Evidence 558-64. In this
case the trial court balanced the prejudicial effect
of the prosecution against the relevance of the
prosecution on Mercer's motive and Campbell's
statement. The trial court found that the
prejudicial effect of that evidence did not outweigh
its probative value.
We find no error that could be
said to have fatally infected the trial which
resulted in the denial of a fair trial.
The district court's order
denying habeas relief is hereby affirmed.
*****
1
This statute has been repealed by L.1983, S.B. Mo.
276, p. 922, Sec. 1 (1986)
2
The Honorable Scott O. Wright, United States
District Judge for the Western District of Missouri
3
Repealed by L.1983, S.B. No. 276, p. 923, Sec. 1,
and replaced by Mo.Rev.Stat. Sec. 565.032.2(6)
(1986)
4
The two aggravating factors were Mo.Rev.Stat. Sec.
565.012.2(7) Depravity of Mind ("the offense was
outrageously or wantonly vile, horrible or inhuman
in that it involved torture, or depravity of mind")
and Sec. 565.012.2(6) Murder as an Agent ("[t]he
offender caused or directed another to commit murder
or committed capital murder as an agent or employee
of another person")
5
Mercer does not challenge here the jury's finding
that the murder was depraved. While he challenged
the use of the depravity factor in the district
court, he has not renewed his challenge on appeal.
Accordingly, we consider only whether agency could
have been found by the jury
6
The following exchange between Mr. Hamilton (prosecutor),
Messrs. Fiorella and Lozano (defense attorneys), the
court, and Mr. Bumgarner is at issue:
Q [By Mr. Hamilton]. Mr Bumgarner,
this is a charge of capital murder, which means that
it does carry the possibility of capital punishment,
or the death sentence. My inquiry is directed to
find out what your attitude is toward capital
punishment. If, during the trial of this case the
facts and circumstances were developed that in fact
the jury could consider capital punishment, would
you, as a juror, consider capital punishment as a
possible alternative?
A[By Mr. Bumgarner]. I don't
think so.
Q. Are you morally and
religiously opposed to capital punishment?
A. Yes.
Q. And you feel you couldn't
bring back a sentence of--the death sentence under
any circumstances?
A. I don't think so.
Q. So regardless of how severe
and aggravated the circumstances are, you don't feel
that you could bring back a death penalty?
A. I don't believe I could.
MR. HAMILTON: Thank you, sir. I
have no other questions.
MR. FIORELLA: We would have no
questions of Mr. Bumgarner.
(Venireman excused.)
THE COURT: Any challenge for
cause against Harry Bumgarner?
MR. HAMILTON: The state
challenges him for cause.
MR. LOZANO: Our position on the
previous grounds, Judge.
THE COURT: The state's challenge
of Harry Bumgarner for cause is granted. He will be
excused for cause.
Tr. at 169-70
864 F.2d 1429
George
Mercer, Petitioner, v.
William Armontrout, Warden,
Missouri State Penitentiary,
Respondent.
No.
88-2547
Federal Circuits, 8th Cir.
December 30, 1988
Before LAY, Chief Judge,
McMILLIAN and ARNOLD, Circuit
Judges.
LAY, Chief
Judge.
George Mercer
was convicted of capital murder
in the state courts of Missouri
and sentenced to death. The
conviction and sentence were
subsequently affirmed by the
Supreme Court of Missouri, State
v. Mercer, 618 S.W.2d 1 (Mo.),
cert. denied,
454 U.S. 933 , 102 S.Ct.
432, 70 L.Ed.2d 240 (1981),
and Mercer was later denied
relief in state post-conviction
proceedings. Mercer v. State,
666 S.W.2d 942 (Mo.App.1984).
This court affirmed the denial
by the federal district court of
his petition for a writ of
habeas corpus. Mercer v.
Armontrout, 844 F.2d 582 (8th
Cir.), cert. denied, --- U.S.
----, 109 S.Ct. 249, 102 L.Ed.2d
238 (1988).
Shortly after
the Supreme Court of the United
States denied certiorari, the
Supreme Court of Missouri set
October 20, 1988, at 12:01 a.m.,
as the new date for execution of
sentence. Mercer filed a second
petition for a writ of habeas
corpus in the district court for
the Western District of Missouri
on October 13, 1988. The
district court summarily
dismissed this petition and
denied Mercer's request for a
stay of execution. Mercer v.
Armontrout, 701 F.Supp. 1460 (W.D.Mo.1988).
An appeal was
filed in this court and a motion
to stay the execution was
likewise filed. The motion was
assigned to the original panel
members who had passed on the
first habeas case. The motion to
stay the execution was
temporarily granted because it
was presented to the panel of
this court at a time when court
was in session and it was
impossible for the three judges
to adequately review the
material prior to the designated
time of the execution. Mercer v.
Armontrout, No. 88-2547-WM (8th
Cir. Oct. 19, 1988).
Petitioner's
second petition for a writ of
habeas corpus raised several new
issues relating to ineffective
assistance of counsel. The
court's preliminary concern was
whether Mercer's new petition
stated issues worthy of granting
a certificate of probable cause.
After studied analysis we have
now determined that a
certificate of probable cause
should not issue in the present
case. However, this is a capital
case and the State has
questioned certain procedural
processes of this court in
issuing our initial stay order.
Accordingly, it is important to
initially discuss standards
concerning a federal court's
review of motions to stay state
warrants of execution.
Human life is
our most precious possession.
Our natural instincts guide us
from birth to sustain life by
protecting ourselves and
protecting others. All notions
of morality focus on the right
to live and all of man's laws
seek to preserve this most
important right. When presented
with challenges to a capital
sentence, it would be easy to
respond rhetorically by asking,
"what about the victim whom the
defendant has been found guilty
of unmercifully killing."
But this
approach fails to reflect on the
ideal that a government founded
by a moral and civilized society
should not act as unmercifully
as the defendant is accused of
acting. If the original murder
cannot be justified under man's
laws, it is equally unlawful and
inhumane to commit the same
atrocity in the name of the
state. What separates the
unlawful killing by man and the
lawful killing by the state are
the legal barriers that exist to
preserve the individual's
constitutional rights and
protect against the unlawful
execution of a death sentence.
If the law is not given strict
adherence, then we as a society
are just as guilty of a heinous
crime as the condemned felon. It
should thus be readily apparent
that the legal process in a
civilized society must not rush
to judgment and thereafter rush
to execute a person found guilty
of taking the life of another.
I.
Granting Stay of Execution
The initial
point of inquiry in granting or
denying a stay of execution in a
death case must be whether the
petition is frivolous. If the
petition is not frivolous on its
face, the very essence of this
court's duty is to study and
research the points raised. The
severity and finality of the
death penalty requires the
utmost diligence and scrutiny of
the court.
In capital
cases the law is uniquely
complex and difficult to
understand. No judge can digest,
retain, or apply these
principles to a voluminous state
court record without reflective
study and analysis. To suggest
that a life or death decision
can be made by simply reading a
petition is to advocate
dereliction of judicial duty.
The penalty has already been
rendered and approved by the
highest court of the state in
which the crime has been
committed. However, as worthy as
state courts may be, the state
process does not always ensure
constitutional process.1
Experience
has long demonstrated that human
judgment rendered through
judicial process is not
infallible. As long as federal
habeas review exists, it is the
duty of federal judges to make
certain that an individual does
not forfeit his life at the
hands of the state unless the
state process lawfully rendered
the punishment, it complied with
federal constitutional
standards, and the defendant was
furnished with competent and
effective representation within
the norms required by the sixth
amendment. Regardless of how
heinous the crime, no one may
reasonably question that a
predicate to carrying out a
death sentence is careful review
of the constitutionality of the
defendant's conviction and
sentence.
The State is
critical of our granting an
emergency stay in this case. We
reject this criticism because it
advocates execution of a death
sentence without this court's
reflective study of the issues
raised in this case. It is a far
greater tragedy to permit an
unlawful execution than to delay
a state's death warrant a few
weeks to ensure that an
irreparable mistake does not
occur.
II.
Repetitive Petitioning and
Appointed Counsel
The State
urges that habeas petitioners
may "abuse" the writ by filing
repetitive or "successive"
petitions.2
It is often asserted that in
death cases repetitive writs
present motions to stay and that
such procedural tactics are used
to merely prolong the
inevitable. Notwithstanding this
possibility, "[t]he consequences
of injustice--loss of liberty
and sometimes loss of life--are
far too great to permit the
automatic application of an
entire body of technical rules
whose primary relevance lies in
the area of civil litigation."
Sanders v. United States, 373
U.S. 1, 24, 83 S.Ct. 1068, 1082,
10 L.Ed.2d 148 (1963) (Harlan,
J., dissenting). Concerns for
comity to a sovereign state and
finality to its judgments do not
outweigh the absolute need to
protect against the deprivation
of an individual's
constitutional rights which
might invalidate the capital
sentence.
The apparent
question is whether there exists
sufficient means within the
framework of the law to prevent
vexatious delay resulting from
state prisoners who seek to
abuse the writ. In considering
this question, certain
preliminary factors must be
taken into account. First, it
must be recognized that a
convicted defendant sentenced to
death will attempt to assert
every means available to prevent
his execution. The instinctive
human desire to live accounts
for the proliferation of
petitions for writs and stays.
Nothing short of a complete bar
to such petitions will prevent
their continued filings.
Second,
lawyers should not be faulted
for their services to indigent
condemned prisoners in
attempting to set aside a
capital sentence. Courts appoint
lawyers to serve these prisoners
to assure that no condemned
person shall die by reason of an
unconstitutional process. It is
important to understand the
serious nature of the voluntary
service involved.
The American
Bar Association has initiated,
and the Judicial Conference of
the United States has supported,
the establishment of Death
Penalty Resource Centers. The
purpose of these Centers is to
increase the availability of
competent attorneys to review
the state processes and assure
competent and effective
representation of individuals
sentenced to death.
This project
is inspired by the fact that
competent representation is
difficult to secure. The
scarcity of volunteers among
lawyers is understandable
considering the fact that the
average time that a competent
lawyer labors in post-conviction
review of a single death
sentence is approximately one-quarter
of a lawyer's billable hours for
one year. These lawyers receive
little or no compensation for
this service.
It is
essential to remember that
counsel is appointed to ensure
the preservation of the
defendant's constitutional
rights and to make certain that
unlawful executions do not occur.
The procedural mechanism for
reviewing these petitions must
strive to promote these same
principles. The federal
judiciary must therefore take
particular care in death penalty
cases to give patient and
thoughtful review of claims
presented by petitioners through
their appointed counsel.
III.
Procedural Barriers
Once an
initial petition for a writ of
habeas corpus has been fully
processed by a federal court, a
state prisoner must comply with
certain procedural prerequisites
before obtaining subsequent
federal review of any
constitutional claims relating
to his conviction or sentence.
A fundamental
requirement contained in these
procedures is that a state
prisoner must exhaust his state
court remedies. Assuming a
defendant has filed one state
court post-conviction petition
before filing a petition in
federal court, the doctrine
requiring exhaustion of an
existing state court remedy
becomes inapplicable in light of
the fact that generally no state
court remedy exists.
The next
procedural barrier a prisoner
must confront is the rule which
precludes federal review of
issues if there has been a
procedural default by the
prisoner on those issues in the
state court. Wainwright v. Sykes,
433 U.S. 72, 86-87, 97 S.Ct.
2497, 2506-07, 53 L.Ed.2d 594
(1977). Thus a petitioner cannot
assert a claim of constitutional
error at trial if he did not
contemporaneously object at
trial.
Furthermore,
the petitioner cannot assert
claims of constitutional error
on his appeal if the issue was
omitted on the state court
appeal. Smith v. Murray, 477
U.S. 527, 533, 106 S.Ct. 2661,
2665, 91 L.Ed.2d 434 (1986). See
also Stokes v. Armontrout, 851
F.2d 1085, 1092 (8th Cir.1988) (application
of "cause and prejudice" rules
in federal habeas proceeding
when petitioner's counsel failed
to raise constitutional claims
in state post-conviction
proceeding). The procedural
by-pass rule is said to promote
finality and deference to the
procedure of the state court.
Smith v. Murray, 477 U.S. at
533, 106 S.Ct. at 2665.
Two
exceptions exist, however, to
the procedural by-pass rule.
First, the existence of both
"cause" and "prejudice" may
excuse the procedural default in
state court. Cause is an ill-defined
term over which federal judges
have debated. Generally, cause
can be established if some
extrinsic circumstances
prevented counsel from raising
the issue. The usual example is
the emergence of a new principle
of constitutional law previously
unrecognized at the time of the
state court proceeding. Reed v.
Ross, 468 U.S. 1, 18, 104 S.Ct.
2901, 2911, 82 L.Ed.2d 1 (1984).
Cause may also be established by
a sixth amendment violation of
ineffective assistance of
counsel under Strickland v.
Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674
(1984). See Kimmelman v.
Morrison, 477 U.S. 365, 380-82,
106 S.Ct. 2574, 2586-87, 91 L.Ed.2d
305 (1986). Once cause is
established, "actual" prejudice
must be separately proven. See
United States v. Frady, 456 U.S.
152, 168, 102 S.Ct. 1584, 1594,
71 L.Ed.2d 816 (1982); Engle v.
Isaac, 456 U.S. 107, 129, 102
S.Ct. 1558, 1572, 71 L.Ed.2d 783
(1982).
The other
exception to Sykes now appears
in Murray v. Carrier, 477 U.S.
478, 106 S.Ct. 2639, 91 L.Ed.2d
397 (1986) and Smith v. Murray,
477 U.S. 527, 106 S.Ct. 2661, 91
L.Ed.2d 434 (1986). The
procedural default rule can be
avoided if a fundamental
miscarriage of justice has
occurred where "the alleged
error undermined the accuracy of
the guilt or sentencing
determination." Smith v. Murray,
477 U.S. at 539, 106 S.Ct. at
2669. See also Murray v.
Carrier, 477 U.S. at 496, 106
S.Ct. at 2650.
Before
ineffective assistance of
counsel may be used to obviate a
state procedural by-pass rule,
actual prejudice must be shown.
This requires a demonstration of
"a reasonable probability that,
absent the [attorney's] errors,
the factfinder would have had a
reasonable doubt respecting
guilt." Strickland v.
Washington, 466 U.S. at 695, 104
S.Ct. at 2068-69. In dealing
with the prejudice portion of
the cause and prejudice test
under Sykes, the Supreme Court
has clearly required a showing
of actual prejudice as well as
the demonstration of cause.
Murray v. Carrier, 477 U.S. at
495, 106 S.Ct. at 2649. See also
Engle v. Isaac, 456 U.S. at 110,
102 S.Ct. at 1563.
The terms in
Sykes are therefore not
dissimilar to Strickland' §
prejudice test for ineffective
assistance of counsel. Cf.
United States v. Frady, 456 U.S.
at 167-68, 102 S.Ct. at 1594-95;
Henderson v. Kibbe, 431 U.S.
145, 154, 97 S.Ct. 1730, 1736,
52 L.Ed.2d 203 (1977). Similarly,
in Kuhlmann v. Wilson, 477 U.S.
436, 106 S.Ct. 2616, 91 L.Ed.2d
364 (1986), the court observed
that the "ends of justice"
standard involved in review of
successive petitions for a writ
requires a showing of a
constitutional claim with a
colorable showing of factual
innocence. Id. at 444-45, 106
S.Ct. at 2622 (citing Sanders v.
United States, 373 U.S. at 15,
16-17, 83 S.Ct. at 1077-78).
Although each
of the tests relating to actual
prejudice are raised in a
different context or stage in
presenting habeas claims, it is
readily apparent that the same
core concern pervades the
ultimate requirement for a
habeas petitioner to succeed.3
In a
repetitive filing of a habeas
petition of claims that have not
been previously submitted, the
petitioner faces the implicit
barrier of a bevy of procedural
by-pass rules. In the present
case, for example, Mercer raises
claims of ineffective assistance
of trial counsel which he has
not raised before in either his
state or federal post-conviction
proceedings. Before we may
review the merits of those
claims, we must question whether
there was cause and prejudice in
his failure to raise these
issues in his state post-conviction
claims or his first federal
habeas petition. Cf. Stokes v.
Armontrout, 851 F.2d at 1092.
This raises the question of
whether his counsel for the
post-conviction proceedings was
ineffective and caused him
prejudice in not raising these
claims. See, e.g., Gilmore v.
Armontrout, 861 F.2d 1061,
1063-64 (8th Cir.1988); Stokes
v. Armontrout, 851 F.2d at
1092-96.
Petitioner
has made no showing that his
first trial counsel in the state
post-conviction proceeding or
his trial counsel in the first
habeas proceeding was
ineffective under Strickland
standards. Nor has petitioner
demonstrated a fundamental
miscarriage of justice to
obviate the cause and prejudice
standard. See Smith v. Murray,
477 U.S. at 539, 106 S.Ct. at
2669.
IV.
Certificate of Probable Cause
The Supreme
Court has held that procedural
default must be enforced in all
cases "devoid" of a
constitutional claim which "undermined
the accuracy of the guilt or
sentencing determination." Smith
v. Murray, 477 U.S. at 539, 106
S.Ct. at 2669. We have reviewed
Mercer's claims to determine
whether the accuracy of his
guilt and sentencing
determinations are prejudically
undermined by his belated
constitutional claims.
To attain a
certificate of probable cause, a
petitioner must present
constitutional claims that are
at least debatable among
reasonable jurists. Barefoot v.
Estelle, 463 U.S. 880, 893 n. 4,
103 S.Ct. 3383, 3394 n. 4, 77
L.Ed.2d 1090 (1983). In his
application, Mercer claims that
the prosecution withheld
mitigating evidence, the "depravity
of mind" instruction was
unconstitutional, and he
received ineffective assistance
of counsel in several
particulars.
A.
Prosecution Withheld Mitigation
Evidence
Mercer
contends that the prosecution
withheld evidence that the
victim had engaged in the
illegal use and sale of drugs.
He argues that this evidence
could prove that her death was
caused by drugs or, in the
alternative, by John Campbell
with whom she associated due to
her involvement with drugs. This
argument cannot succeed. As the
district court observed, the
cause of death was disputed at
trial. Mercer claimed that the
medical report made on the
victim's death was inconclusive
and inconsistent. He further
argued that John Campbell
actually murdered the victim.
Consequently,
it cannot be urged that
presentation of the evidence in
question would have led to a
theory or defense which had not
been presented at trial.
Moreover, while evidence that
the victim used and distributed
drugs might have supported these
contentions, that support at
best would have had minimal
influence. The jury determined
beyond a reasonable doubt that
Mercer strangled the victim to
death. Because there is ample
evidence in the record to
support the jury's finding, it
would be unreasonable to
conclude that presentation of
the allegedly withheld evidence
would have led to a different
outcome.
B.
Depravity of Mind Instruction
Mercer also
contends that the depravity of
mind instruction, provided to
the jury on the issue of
aggravating circumstances, was
unconstitutionally vague. While
the instruction has been
previously reviewed and upheld
on the basis of Godfrey v.
Georgia, 446 U.S. 420, 100 S.Ct.
1759, 64 L.Ed.2d 398 (1980), he
argues that the Supreme Court
has recently redefined the law
in this area. In Maynard v.
Cartwright, --- U.S. ----, 108
S.Ct. 1853, 100 L.Ed.2d 372
(1988), the Court held that the
language "especially heinous,
atrocious, or cruel" provided
inadequate guidance for
sentencing and was therefore
unconstitutional. Id., 108 S.Ct.
at 1859. However, Cartwright is
clearly an application, rather
than an expansion, of Godfrey.
Id. 108 S.Ct. at 1858-59.
The
constitutionality of the
Missouri instruction therefore
remains intact. As required by
Godfrey, the jury's
determination on this issue was
properly reviewed by the
appellate court. State v.
Mercer, 618 S.W.2d at 10-11.
Furthermore,
the instruction required that in
addition to outrageous or wanton
and inhuman conduct, there must
be a finding of depravity of
mind.4
This requirement distinguishes
the instant case from
Cartwright, in which the
instruction only required a
general finding that the murder
was "especially heinous,
atrocious, or cruel."5
Thus, the instruction, viewed in
the light most favorable to
Mercer's claim, did not
undermine the accuracy of the
sentencing determination.C.
Ineffective Assistance of
Counsel
Finally,
Mercer raises a host of claims
of ineffective assistance of
trial counsel in his second
habeas petition. Mercer argues
that these claims were not
contained in the initial
petition because he was at that
time still represented by trial
counsel, Cenobio Lozano, who
failed to allege ineffective
assistance of counsel as the
result of the obvious conflict
of interest. However, assuming
this to be true, upon review of
the record, these claims do not
in any way demonstrate a
colorable showing of actual
innocence or that the sentencing
process was undermined.
Mercer
contends that counsel erred in
failing to discover and present
evidence relating to the
victim's alleged illegal use and
sale of drugs. Further, he
asserts error in counsel's
failure to present a forensic
pathologist to testify regarding
the condition of the victim's
body.6
As previously stated, it is
highly improbable that evidence
of this sort would have changed
the outcome of the trial. The
failure to present such evidence
was not sufficiently prejudicial
to Mercer's case to find
ineffective assistance of
counsel.
Mercer also
alleges that counsel erred in
recommending that he waive
instructions on lesser included
offenses, namely, the first
degree murder and felony-murder
instructions. The Missouri Court
of Appeals found that Mercer and
his counsel had expressly waived
these instructions. Mercer v.
State, 666 S.W.2d at 945-47. The
trial transcript clearly
demonstrates that Mercer on two
separate occasions knowingly and
willingly waived these
instructions. No prejudice
exists under these circumstances.
Finally,
Mercer asserts that counsel
erred in failing to develop and
present evidence of mitigating
circumstances. In particular, he
argues that counsel should have
pursued a theory of diminished
capacity due to the consumption
of alcohol. Although there is
evidence that indicates Mercer
had consumed alcohol at the time
of the murder, there is nothing
in the record demonstrating that
he was intoxicated.
In fact,
there is considerable evidence
supporting the jury's conclusion
that Mercer's conduct was
performed in a sober and
calculated manner. It is clear
that Mercer was not prejudiced
by counsel's decision not to
pursue a defense based on
alcohol consumption. It would be
unreasonable to conclude that
the presentation of this
mitigation evidence, either
during the trial or in the
sentencing phase, would have
altered Mercer's fate in these
proceedings.
Mercer's
second petition for a writ of
habeas corpus has failed to
demonstrate any substantial
claim which, if true, would have
undermined the accuracy of the
guilt or sentencing
determination. A certificate of
probable cause is denied and
this court's previous order to
stay execution of the sentence
is ordered vacated. Leave to
appeal in forma pauperis is
denied and the appeal is
dismissed. The mandate shall
issue forthwith.
*****
1 Since its decision in
Furman v. Georgia, 408 U.S. 238,
92 S.Ct. 2726, 33 L.Ed.2d 346
(1972), the Supreme Court has
vacated the sentence, or has
affirmed the vacation of
sentence, in roughly half of the
death penalty cases in which it
has granted certiorari. See, e.g.,
Thompson v. Oklahoma, --- U.S.
----, 108 S.Ct. 2687, 101 L.Ed.2d
702 (1988); Maynard v.
Cartwright, --- U.S. ----, 108
S.Ct. 1853, 100 L.Ed.2d 372
(1988); Satterwhite v. Texas,
--- U.S. ---- 108 S.Ct. 1792,
100 L.Ed.2d 284 (1988); Sumner
v. Shuman, 483 U.S. 66, 107 S.Ct.
2716, 97 L.Ed.2d 56 (1987);
Booth v. Maryland, 482 U.S. 496,
107 S.Ct. 2529, 96 L.Ed.2d 440
(1987); Gray v. Mississippi, 481
U.S. 648, 107 S.Ct. 2045, 95
L.Ed.2d 622 (1987); Tison v.
Arizona, 481 U.S. 137, 107 S.Ct.
1676, 95 L.Ed.2d 127 (1987);
Ford v. Wainwright, 477 U.S.
399, 106 S.Ct. 2595, 91 L.Ed.2d
335 (1986); Skipper v. South
Carolina, 476 U.S. 1, 106 S.Ct.
1669, 90 L.Ed.2d 1 (1986);
Caldwell v. Mississippi, 472
U.S. 320, 105 S.Ct. 2633, 86
L.Ed.2d 231 (1985); Enmund v.
Florida, 458 U.S. 782, 102 S.Ct.
3368, 73 L.Ed.2d 1140 (1982);
Eddings v. Oklahoma, 455 U.S.
104, 102 S.Ct. 869, 71 L.Ed.2d 1
(1982); Bullington v. Missouri,
451 U.S. 430, 101 S.Ct. 1852, 68
L.Ed.2d 270 (1981); Adams v.
Texas, 448 U.S. 38, 100 S.Ct.
2521, 65 L.Ed.2d 581 (1980);
Beck v. Alabama, 447 U.S. 625,
100 S.Ct. 2382, 65 L.Ed.2d 392
(1980); Godfrey v. Georgia, 446
U.S. 420, 100 S.Ct. 1759, 64
L.Ed.2d 398 (1980); Lockett v.
Ohio, 438 U.S. 586, 98 S.Ct.
2954, 57 L.Ed.2d 973 (1978);
Bell v. Ohio, 438 U.S. 637, 98
S.Ct. 2977, 57 L.Ed.2d 1010
(1978); Coker v. Georgia, 433
U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d
982 (1977); Roberts v.
Louisiana, 431 U.S. 633, 97 S.Ct.
1993, 52 L.Ed.2d 637 (1977);
Gardner v. Florida, 430 U.S.
349, 97 S.Ct. 1197, 51 L.Ed.2d
393 (1977); Woodson v. North
Carolina,
428 U.S. 280 , 96 S.Ct.
2978, 49 L.Ed.2d 944 (1976);
Roberts v. Louisiana,
428 U.S. 325 , 96 S.Ct.
3001, 49 L.Ed.2d 974 (1976);
Moore v. Illinois, 408 U.S. 786,
92 S.Ct. 2562, 33 L.Ed.2d 706
(1972); Stewart v.
Massachusetts, 408 U.S. 845, 92
S.Ct. 2845, 33 L.Ed.2d 744
(1972); Crampton v. Ohio,
408 U.S. 941 , 92 S.Ct.
2873, 33 L.Ed.2d 765 (1972)
2 It bears noting that the
terms "successive petition" and
"abuse of the writ" have
different meanings:
A "successive
petition" raises grounds
identical to those raised and
rejected on the merits on a
prior petition. See Sanders v.
United States, 373 U.S., at
15-17 [83 S.Ct. at 1077-78]. * *
* The concept of "abuse of the
writ" is founded on the
equitable nature of habeas
corpus. Thus, where a prisoner
files a petition raising grounds
that were available but not
relied upon in a prior petition,
or engages in other conduct that
"disentitle[s] him to the relief
he seeks," the federal court may
dismiss the subsequent petition
on the ground that the prisoner
has abused the writ. Id., at
17-19 [83 S.Ct. at 1078-79].
Kuhlmann v.
Wilson, 477 U.S. 436, 444 n. 6,
106 S.Ct. 2616, 2622 n. 6, 91
L.Ed.2d 364 (1986).
3 There are of course
important distinctions implicit
to the Court's rulings in Sykes
and Strickland. However, for the
reasons previously discussed
regarding the developments of
Sykes under Smith and Carrier,
the concerns behind the
ineffective assistance of
counsel standard have become
intertwined in the process of
determining procedural bar
4 The instruction reads "[i]n
determining the punishment to be
assessed against the defendant
for the murder of Karen Keeton,
you must first unanimously
determine that ... the murder of
Karen Keeton involved depravity
of mind and that as a result
thereof it was outrageously or
wantonly vile and inhuman."
Mo.Rev.Stat. Sec. 565.012.2(7) (repealed)
5 In any event, the issue of
whether Cartwright alters the
law as stated in Godfrey is
immaterial since the jury also
found an additional aggravating
circumstance based on an agency
theory. Mercer v. Armontrout,
844 F.2d at 584. Under Missouri
law, a death sentence need not
be vacated if only one of
several aggravating
circumstances is found deficient.
Id
6 It must be noted that
counsel did present testimony
from Charles Pottinger who,
while not a forensic pathologist,
is a technician with the Kansas
City Police Department and
capable of expert comment on the
physical evidence in this case
