Missouri v. William Rousan
961 S.W.2d 831 (Mo.banc
On September 21, 1993, Rousan, Rousan’s son Brent
Rousan, and Rousan’s brother, Robert Rousan, met and discussed stealing
cattle from Charles and Grace Lewis.
Charles Lewis, sixty-seven, and his wife Grace,
sixty-two, lived near the farm where Rousan resided. Having devised a
plan, the Rousans’s set out for the Lewis farm. On the way, they
discussed killing Mr. and Mrs. Lewis. They agreed that "if it had to be
done it had to be done."
As the three drove past
the Lewis farm, William Rousan pointed out the cattle they would be
stealing. He parked the truck approximately two miles from the farm. He
got out of the truck and removed a .22 caliber rifle that belonged to
his girlfriend, Mary Lambing. He loaded the rifle for use in the crime
"in case anyone was home."
Rousan and his son then
argued over who would carry the gun, Brent, the son, said that he was "man
enough to do whatever needed to be done and that he would use the weapon."
Rousan at first stated
that Brent was not man enough, but eventually gave him the gun. He
warned Brent that if they were caught, they would "fry." The three men
then hiked through the woods to the Lewis farm where they waited under
cover behind a fallen tree.
Between 3-4 p.m. that
afternoon, Mr. and Mrs. Lewis returned home. Mr. Lewis began to mow the
lawn. Mrs. Lewis spoke on the phone to the couple’s oldest daughter, who
called at approximately 4:00 p.m.
Brent grew tired of
waiting and exclaimed that he wanted to "do it." Rousan told Brent to
wait until he and Robert had secured the house. Rousan headed for the
front door and Robert made his way to the back door.
Before they arrived at
the home, Mr. Lewis saw Brent and called out. Brent fired at least six
shots from the rifle, all of which struck Mr. Lewis. He died as a result
of those gunshot wounds.
Mrs. Lewis, speaking by
telephone with her daughter, told her daughter that she heard gunfire
and hung up the telephone. As Mrs. Lewis exited the house through the
front door, Brent shot her several times. Although the bullets fractured
both of Mrs. Lewis’s arms, the wounds were not fatal.
Mrs. Lewis ran back
into the house. Rousan followed her, removed a garment bag from a coat
rack, and placed the bag over Mrs. Lewis’s head and the upper part of
her body, picked her up and carried her outside.
When Rousan placed Mrs.
Lewis on the ground, she was alive. Rousan turned to Brent and
instructed him to "finish her off." Brent fired one shot into the left
side of Mrs. Lewis’s head. The shot killed her.
The three men wrapped
the bodies in a tarpaulin and tied it with a rope. Rousan instructed
that they should pick up the shell casings and clean up the blood stains.
After doing so, the men deposited the bodies near a shed and left,
planning to return later to get the bodies and the cattle.
The three men, along
with Jerry Rousan, another of Rousan’s brothers, returned to the Lewis
farm that night. There they loaded the bodies into Mr. Lewis’s truck.
They took two cows, a VCR, jewelry, soda, two gas cans, and a saddle.
The four men then returned to Mary Lambing’s farm, where Rousan lived.
On the return trip, Brent bragged about the murders.
At the Lambing farm,
the men buried Mr. and Mrs. Lewis in a shallow grave by the barn. After
digging the grave and placing the bodies in it, the men poured concrete
over the bodies. They covered the grave with a pile of manure. They
burned rags used to clean the blood from the Lewis house.
The men disposed of the
Lewises’ property in various ways. On the night of the murders, the men
consumed the soda. The cows were later sold at auction. Robert gave the
VCR to his sister and brother-in-law, Barbara and Bruce Williams, on the
day following the murders.
Mr. and Mrs. Williams
sold the VCR to a local pawn broker approximately eight months later.
Rousan buried the couple’s personal items. He gave the remainder of the
jewelry to Mary Lambing on special occasions during the following year.
The four men hid and later burned Mr. Lewis’s truck.
When the Lewises’
daughter could not reach her parents the following day, she became
concerned. She called the police, who undertook an investigation into
the Lewises’ disappearance. The police investigation continued for
nearly a year without an arrest.
On September 20, 1994
Rousan was arrested.
Supreme Court of Missouri
Case Style: William L. Rousan, Appellant v. State of Missouri,
Case Number: SC82406
Handdown Date: 05/15/2001
Appeal From: Circuit Court of St. Francois County, Hon.
Timothy J. Wilson
A jury found William Rousan guilty of two first-degree
murders for killing Charles and Grace Lewis in September 1993. He was
sentenced to life without parole and to death. The Court affirmed his
sentences on appeal. He now appeals denial of post-conviction relief.
Court en banc holds: Rousan failed to show his
counsel provided ineffective assistance.
(1) Counsel were not ineffective for failing to present Rousan's past
prison and other records. The records contained misconduct evidence that
could have been prejudicial. Defense counsel called six witnesses for
(2) Counsel were not ineffective for failing to call a former employer
to testify to Rousan's work ethic. Counsel contacted the witness. The
witness would testify to Rousan's temper when fired. Rousan's good work
right after the murders could weigh against him. No logical inference
exists that equates working well with adjusting to prison life.
(3) Counsel were not ineffective in failing to make a meritless
objection to the prosecutor's argument. The prosecutor may say prison
workers will have contact with Rousan to rebut Rousan's argument that
life imprisonment would protect society.
(4) The court did not clearly err in determining that Rousan, on
counsel's advice, decided not to testify. The court is entitled to
believe counsel's testimony. There is no reasonable probability that
Rousan's testimony would have changed the result. It was subject to
impeachment for its inconsistency with his confession.
(5) Rousan did not establish that his son (who also murdered the victims)
would have testified, that counsels' failure to call his son was other
than reasonable trial strategy, or that his son's testimony would have
provided a viable defense. The son contradicted earlier statements, was
not believable, and gave statements damaging to the defense.
(6) Rousan failed to present credible evidence that an attorney request
form was filled out. The record shows Rousan was repeatedly advised of
his rights, and there was no evidence at the suppression hearing that he
requested an attorney. None of Rousan's counsel could find the form, and
Rousan could not produce it at his post-conviction hearing.
(7) Highway patrol officers' personnel records did not contain
information about their action in this case and did not relate to
Rousan's guilt or innocence. The records could not impeach the officers,
as the records did not relate to truth and veracity.
(8) Rousan was not prejudiced by counsel's failure to redact Rousan's
prior convictions from his confession. He interjected them on his own to
tell a unique story, which would be incomplete without them. His
convictions had already been brought up to the jury in voir dire, and
the court had told the jurors that his convictions could not be used to
find him guilty.
(9) Counsel were not ineffective in failing to call the cellmate of
another relative involved with the murders. Rousan failed to show
prejudice or a reasonable probability of a different result, especially
since one cellmate testified and was impeached.
(10) Counsel was not ineffective for failing to object that an
aggravator was cumulative, which objection Missouri law has consistently
(11) The aggravating circumstance was sufficient to uphold the death
(12) Contrary to Rousan's contention, the record shows counsel cross-examined
a witness about a statement he made.
(13) Rousan's work records were not presented because they did not
preclude him from casing the farm.
(14) Rousan's contention that a witness's testimony was improperly
obtained by inducement of leniency is misplaced on an overruled federal
(15) The evidence was sufficient for reasonable people to find Rousan
Opinion Author: Michael A. Wolff, Judge
Opinion Vote: AFFIRMED. Price, C.J., Limbaugh,
White, Holstein and Benton, JJ., and Crahan, Sp.J., concur. Stith, J.,
A jury found William L. Rousan guilty of two counts of first degree
murder for the deaths of Charles and Grace Lewis. Section 565.020.1. He
was sentenced to life without parole for Mr. Lewis' murder and death for
Mrs. Lewis' murder. He appealed, and this Court affirmed. State v.
Rousan (Rousan I), 961 S.W.2d 831 (Mo. banc 1998). Rousan's Rule
29.15 motion for post-conviction relief claiming ineffective assistance
of counsel was overruled. He appeals the denial of his Rule 29.15 motion
to this Court and raises fifteen points of error. This Court has
jurisdiction. Mo. Const. art. V, section 10. We affirm.
The Facts and Trial Court Judgment
The facts must be viewed in the light most favorable
to the verdicts. State v. Shurn, 866 S.W.2d 447, 455 (Mo. banc
1993), cert. denied, 513 U.S. 837 (1994). Since the standard
under which we view the facts is the same as for a direct appeal, the
facts of Rousan I, are adopted and summarized in this
On September 21, 1993, Rousan, his son, Brent Rousan,
and Rousan's brother, Robert Rousan, met and discussed stealing cattle
from Charles and Grace Lewis. Charles Lewis, 67, and his wife, Grace,
62, lived near the farm where Rousan resided. Having devised a plan, the
Rousans set out for the Lewis farm. On the way they discussed killing Mr.
and Mrs. Lewis. They agreed that "if it had to be done it had to be
As Rousan, Robert, and Brent drove past the Lewis
farm, Rousan pointed out the cattle that they would be stealing. Rousan
parked his truck approximately two miles from the farm. He got out of
the truck and removed a .22 caliber rifle that belonged to his
girlfriend, Mary Lambing. He loaded the rifle for use in the crime "in
case anyone was home. " Rousan and his son then argued over who would
carry the gun. Brent said that he was "man enough to do whatever needed
to be done and that he would use the weapon." Rousan at first stated
that Brent was not man enough, but eventually gave him the gun. He
warned Brent that if they were caught, they would "fry." The three men
then hiked through the woods to the Lewis farm where they waited under
cover behind a fallen tree.
Between 3 p.m. and 4 p.m. that afternoon, Mr. and Mrs.
Lewis returned home. Mr. Lewis began to mow the lawn. Mrs. Lewis spoke
on the phone to the couple's oldest daughter, who called at
approximately 4 p.m.
Brent grew tired of waiting and exclaimed that he
wanted to "do it." Rousan told Brent to wait until Rousan and Robert had
secured the house. Rousan headed for the front door and Robert made his
way to the back door. Before they got to the door, Mr. Lewis saw Brent
and called out. Brent fired at least six shots from the rifle, all of
which struck Mr. Lewis. Mr. Lewis died as a result of the multiple
Mrs. Lewis, speaking by telephone with her daughter,
told her daughter that she heard gunfire and hung up the telephone. As
Mrs. Lewis exited the house through the front door, Brent shot her
several times. Although the bullets fractured both of Mrs. Lewis' arms,
the wounds were not fatal. Mrs. Lewis ran back into the house. Rousan
followed her, removed a garment bag from a coat rack, placed the bag
over Mrs. Lewis' head and the upper part of her body, picked her up, and
carried her outside. When Rousan placed Mrs. Lewis on the ground, she
was alive. Rousan turned to Brent and instructed him to "finish her off."
Brent fired one shot into the left side of Mrs. Lewis' head. The shot
The three men wrapped the bodies in a tarpaulin and
tied it with a rope. Rousan instructed that they should pick up the
shell casings and clean up the blood stains. After doing so, the men
deposited the bodies near a shed and left, planning to return later to
get the bodies and the cattle.
The three men, along with Jerry Rousan, another of
Rousan's brothers, returned to the Lewis farm that night. There they
loaded the bodies into Mr. Lewis' truck. They took two cows, a VCR,
jewelry, soda, two gas cans, and a saddle. The four men then returned to
Mary Lambing's farm, where Rousan lived. On the return trip, Brent
bragged about the murders. At the Lambing farm, the men buried Mr. and
Mrs. Lewis in a shallow grave by the barn. After digging the grave and
placing the bodies in it, the men poured concrete over the bodies. They
covered the grave with a pile of manure. They burned rags used to clean
the blood from the Lewis house.
The men disposed of the Lewises' property in various
ways. On the night of the murders, the men consumed the soda. The cows
were later sold at auction. Robert Rousan gave the VCR to his sister and
brother-in-law, Barbara and Bruce Williams, on the day following the
murders. Mr. and Mrs. Williams sold the VCR to a local pawnbroker
approximately eight months later. Rousan buried the couple's personal
items. He gave the remainder of the jewelry to Mary Lambing on special
occasions during the following year. The four men hid and later burned
Mr. Lewis' truck.
Rousan, armed with a .22 caliber rifle, was arrested
at the barn without incident. He was taken to the Washington County
sheriff's department. There, the officers advised Rousan of his
Miranda rights and questioned him.
Rousan provided information that implicated himself
in the murders. He told the police that he had first met the victims in
1975. He saw them again in 1989 after he escaped from custody in the
State of Washington and sought refuge at their farm. When Mr. Lewis
discovered Rousan hiding in his barn, Mr. Lewis fed him, clothed him,
and when Rousan left the farm two weeks later, Mr. Lewis gave him twenty
dollars. Shortly after that time, Rousan was apprehended and returned to
After release from prison in June of 1993, Rousan
returned to the farm to thank Mr. and Mrs. Lewis for their kindness and
to rekindle their friendship, he said. According to Rousan, Mrs. Lewis
was in poor health. Rousan explained that Mr. Lewis asked Rousan to kill
Mrs. Lewis to put her out of her misery, and to kill him because he did
not want to live without his wife. Rousan also claimed that he was hired
by Charles Lewis, IV, son of Mr. and Mrs. Lewis, to kill them in
exchange for fifty-thousand dollars. Rousan maintained, however, that
his actual motivation for the murders was mercy.
The police discovered the Lewises' bodies at Mary
Lambing's farm. They also discovered the murder weapon and various
articles of the Lewises' personal property there. Rousan was charged
with the murder of Charles and Grace Lewis.
The jury found Rousan guilty of two counts of first
degree murder. At the penalty phase, the state introduced evidence of
Rousan's prior convictions for rape, assault, escape, and unlawful
possession of a firearm. In addition, the state presented testimony from
family members of Mr. and Mrs. Lewis with respect to the impact of their
deaths on the family. Rousan presented testimony of friends and family
members in mitigation of punishment.
The jury found five statutory aggravating
circumstances with respect to Grace Lewis' murder and recommended that
Rousan be sentenced to death. The jury also recommended that Rousan be
sentenced to death for the murder of Charles Lewis. The jury found four
statutory aggravating circumstances with respect to his murder. The
trial court sentenced Rousan to death for the murder of Grace Lewis and
life imprisonment without the possibility of parole for the murder of
Charles Lewis. This Court affirmed on direct appeal. Thereafter, Rousan
filed a timely Rule 29.15 motion in the trial court for post-conviction
relief. He claimed his attorneys, Richard Scholz and Robert Wolfrum,
were ineffective. The court appointed counsel and held a hearing on
Rousan's claims. On December 28, 1999, the circuit court overruled his
The Standard of Review
This Court's review is limited to determining whether
the motion court clearly erred in its findings and conclusions. Rule
29.15(k); State v. Wise, 879 S.W.2d 494, 524 (Mo. banc 1994),
cert. denied, 513 U.S. 1093 (1995). The findings and conclusions of
the motion court "are clearly erroneous only if, after a review of the
entire record, the appellate court is left with the definite impression
that a mistake has been made." State v. Parker, 886 S.W.2d 908,
929 (Mo. banc 1994), cert. denied, 514 U.S. 1098 (1995).
With respect to claims of ineffective assistance of
counsel, the burden is on the claimant to prove that his counsel's
performance "fell below an objective standard of reasonableness" and
that "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different." Strickland v. Washington, 466 U.S. 668 (1984). To
prove prejudice, Rousan must show that there is a "reasonable
probability that, but for counsel's errors, the result of the proceeding
would have been different." Shurn, 866 S.W.2d at 468 (quoting
State v. Ervin, 835 S.W.2d 905 (Mo. banc 1992), cert. denied,
507 U.S. 954 (1993)). A reasonable probability, under Strickland,
is "a probability sufficient to undermine confidence in the outcome."
466 U.S. at 694.
Rousan's Claims of Ineffective Assistance
Some of Rousan's points on this appeal raise his
trial counsel's failure to call certain witnesses. A decision not to
call a witness is presumed trial strategy unless clearly shown to be
otherwise. State v. Clay, 975 S.W.2d 121, 143 (Mo. banc 1998),
cert. denied, 525 U.S. 1085 (1999). Such strategic choices, if made
after thorough investigation, are virtually unchallengeable. State v.
Kenley, 952 S.W.2d 250, 266 (Mo. banc 1997), cert. denied,
522 U.S. 1095 (1998); State v. Ramsey, 864 S.W.2d 320, 340 (Mo.
banc 1993), cert. denied, 511 U.S. 1078 (1994). To prove
ineffectiveness with regard to death penalty sentencing, Rousan must
show that, but for his counsels' ineffective performance, there is a
reasonable probability that the jury would have concluded after
balancing the aggravating and mitigating circumstances, death was not
warranted. Kenley, 952 S.W.2d at 266.
Rousan first contends that counsel Wolfrum and Scholz
were ineffective because they failed to present his past records from
the Federal Bureau of Prisons, the Washington department of corrections,
and the Garrett Heynes educational center of the Washington department
of corrections during the penalty phase. He claims that because these
records show he was a great worker, good student and a well-behaved
prisoner, the jury would have given him a life sentence. Specifically,
they show he did not receive conduct violations in the Washington
department of corrections, and while in the federal prison system, he
was not viewed as a management problem. The prison records demonstrate
that he worked in the vocational horticulture program and received
outstanding evaluations from his supervisor, Grover Glance. He claims
this information would have shown the jury that he was capable of
adjusting to prison life and, thus, would not be a threat to others such
that the jury would have recommended a sentence of life without parole.
Defense counsel Scholz testified that the records
were not introduced because many of the documents contained information
that was not beneficial to Rousan. The information included his use of a
knife to rape and assault Vicki Mohrenweiser, his former girlfriend, and
other details regarding the assault; his arrest for a charge of felony
fraud, that due to an attempted escape he was placed in administrative
segregation for 56 days pending the investigation of the incident; that
he had dug himself out of the Washington pre-release center when he
escaped rather than merely walking away as counsel argued at his trial,
that prison authorities labeled him a "violent offender," and that his
escape history indicated a "pattern of irresponsibility." The documents
show that after his escape from the Washington pre-release center, he
came looking for Mohrenweiser, made threatening calls to his ex-wife in
Texas stating he was on his way to Texas to hurt her, was charged with
felony burglary, and that he was the prime suspect in three arson fires
involving his ex-in-laws' home, his mother's home, and utility barns
owned by his uncle.
Defense counsel did call six witnesses during the
penalty phase. John Tweedie, Rousan's junior high and high school cross
country and track coach, testified that Rousan was quite dedicated. He
also testified that Rousan was a hard worker when they went into a
failed drilling business together. Paul Fitzwater, a former track mate
and friend, testified that he was a leader on the track team, that
people looked up to him, and that when Rousan returned to Potosi he
attended track meets and encouraged the runners. The Texas department of
protective and regulatory services records, which were introduced by
defense, showed that he was awarded custody of his children when his
wife was not found to be properly taking care of them, and that he
provided a safe environment for them as well as good child care. Mary
Lambing, the woman he lived with in Potosi, testified that he worked
very well with her horses, that he encouraged her to go to college, and
worked so she could attend college full time. Reverend Larry Walburn,
who visited with Rousan after his arrest in this case, stated that the
once bitter Rousan had been spiritually changed. Paul Rousan, Rousan's
brother, testified about Rousan's upbringing and the family's problems.
There is no absolute duty to present mitigating
character evidence. Clemmons v. State, 785 S.W.2d 524, 528 (Mo.
banc 1990), cert. denied, 498 U.S. 882 (1990). The introduction
of evidence and selection of witnesses are matters of trial strategy.
Kenley, 952 S.W.2d at 266.
Rousan did not clearly show that the failure to
introduce these records was not reasonable trial strategy. The records
clearly contained information about his past misconduct and convictions
that went beyond that which the jury heard at voir dire. The
introduction of such misconduct could have been prejudicial to Rousan,
as "[t]o the average juror . . . unconvicted criminal activity is
practically indistinguishable from criminal activity resulting in
convictions . . . ." State v. Debler, 856 S.W.2d 641, 657 (Mo.
banc 1993). Thus, defense counsels' decision not to introduce such
non-beneficial items cannot be said to be anything other than reasonable
Rousan claims ineffectiveness based on his counsels'
failure to call Timothy Sander, Rousan's former employer, during the
penalty phase. Sander was subpoenaed but never called by defense to
testify. He would have testified that he had co-owned East Central
Forest Products and that Rousan worked for him for about six months
starting in October 1993. Sander would have told the jury that he had a
hard time finding good help, but that he thought Rousan was "an 'A' plus
worker," was highly regarded by other workers, and was never a problem.
However, he would also have testified that Rousan told him he had been
convicted of crimes, but that the convictions were for escaping from a
Washington prison and transporting a horse across a state line, and that
Rousan had not mentioned any priors for sexual assault. Sander would
also have testified that he gave production bonuses to workers who
produced a certain amount each week, and who contacted him when missing
a day of work. Those employees who did not call did not receive a bonus.
According to Sander, one week Rousan missed work without calling in,
Sander offered to let him make up the work on Saturday so he could get
the bonus, but Rousan did not show up. On payday, Rousan got angry with
Sander when he did not receive a bonus, and Sander told him there had
been an opportunity to make up the work he missed. Rousan quit his job
the following week. Sander would have testified that he did not feel
threatened when Rousan came to his house to pick up his last pay check,
but that he could tell something was bothering Rousan. Lastly, he would
have stated that he offered to hire Rousan again, and that while he was
waiting for an opening, Rousan filled in about two or three times for
Rousan notes that counsel presented evidence of his
concern for his children, the positive influence he had on his current
girlfriend Mary, his deprived childhood, and his high school years to
counter the state's evidence. However, he claims that his work ethic
needed to be shown to the jury as a mitigating circumstance, as it would
have shown the jury that he could have made a good adjustment to life in
prison by continuing to be a hard worker, and this would have given the
jury a reason to impose a life sentence.
Rousan has failed to show the motion court clearly
erred in finding that counsel made a reasoned decision in not calling
Sander during the penalty phase. The record shows that defense counsel
contacted Sander before trial and had an investigator meet with him.
Scholz testified that the fact that Sander would testify that Rousan
lost his temper when he was fired was one consideration in not calling
him. Additionally, the fact that Sander would testify that he did great
work for him, which was right after the murder of Mr. and Mrs. Lewis,
would probably have weighed against him as well. Sander also had been
convicted for armed robbery, making his testimony less credible. Lastly,
there is no logical inference that equates working well with adjusting
to prison life. Thus, this mitigating evidence does not make it probable
that the jury would have found that death was unwarranted. Rather, all
these circumstances demonstrate that Sander was not called as part of
defense counsels' reasonable trial strategy.
Rousan next argues that his counsel failed to
properly object to the state's penalty phase closing argument in which
the prosecutor stated:
. . . The question here when we really come down
to it, there is a lot of things I could say but I won't, is that we
need to deal with this from the standpoint of what is necessary to
protect the community and I say the community, I mean I'm talking
about our community as a whole, our state as a whole or whatever.
The defendant is going to be removed from the community, yes, but
he's going regardless of what you sentence him to, life in prison
without the possibility of probation or parole, if you sentence him
to that he is going to a prison. There are people in those prisons
who go there every day from home and go home every night. So, yes,
there is a possibility still that this man could have access to
people from the outside. They deserve to be protected. We know this
man has participated in ever-increasing spiral of violence . . . .
The motion court found that an objection to this
statement would have been unmerited. However, Rousan contends that the
prosecutor can only rightfully make this type of statement when the
defendant kills someone while he is incarcerated. State v. Antwine,
743 S.W.2d 51, 71 (Mo. banc 1987), cert. denied, 486 U.S. 1017
The state points out, however, that the prosecutor's
statement came in response to the defense argument that society would be
protected from Rousan if the jury sentenced him to life in prison.(FN1)
"A defendant may not provoke reply to his own argument and then assert
error." State v. Kreutzer, 928 S.W.2d 854, 875-76 (Mo. banc
1996), cert. denied, 519 U.S. 1083 (1997). The prosecutor is
allowed to retaliate when defense counsel argues that "a sentence of
life imprisonment without the possibility of parole would 'protect
society.'" Id. Here, the prosecutor was responding that the
defense's statement was not necessarily true, as members of society,
such as people who worked at the prison, would still come in contact
with Rousan. The motion court did not err.
Rousan also contends that his counsel was ineffective
for failing to call him to testify during the guilt phase of his trial.
He testified at his Rule 29.15 hearing that he told Scholz numerous
times that he wanted to testify and that it was always his understanding
that he would testify. He stated that he asked for a recess toward the
end of the guilt phase because he and Scholz were having a disagreement
about him testifying. Rousan stated that he and Scholz had a heated
conversation in the back of the courtroom, where Scholz told him
testifying could create problems, but Rousan maintained that he wanted
to testify. He stated that Wolfrum came back and said they were being
loud, at which point Scholz left, and Rousan told Wolfrum that he wanted
Wolfrum testified at the Rule 29.15 hearing that he
did not remember whether Rousan wanted to testify. But Scholz remembered
their conversations, and stated that, though he advised against it,
Rousan wanted to testify at his trial. Rousan's prior convictions were
brought up during voir dire for a couple of reasons, one of which was in
case Rousan testified. Scholz testified that at some point Rousan told
Wolfrum at the counsel table that he had changed his mind and did not
want to testify. Wolfrum relayed this message to Scholz, who breathed a
sigh of relief and went on.
The decision to testify solely rests with the
defendant, but the defendant is entitled to receive "reasonably
competent advice." State v. Dees, 916 S.W.2d 287, 301 (Mo. App.
1995), cert. denied, 519 U.S. 857 (1996). Without more, advice
from counsel not to testify is not deemed ineffective assistance of
counsel if it might be considered sound trial strategy. State v.
Powell, 798 S.W.2d 709, 718 (Mo. banc 1990), cert. denied,
501 U.S. 1259 (1991). The motion court did not clearly err in
determining that Rousan, on the advice of counsel, decided not to
testify. This conclusion is supported by the testimony. Rousan's
testimony and Scholz's testimony conflict as to whether Rousan wanted to
testify. The motion court is entitled to believe counsel's testimony and
disbelieve that of the defendant. State v. Loggins, 778 S.W.2d
783, 791 (Mo. App. 1989); State v. Feltrop, 803 S.W.2d 1, 20 (Mo.
banc 1991), cert. denied, 501 U.S. 1262 (1991).
Would the outcome of the case been different had
Rousan testified? Rousan would have testified that there was no
premeditated plot to kill the Lewises. He went to the farm with his
brother and son to steal cattle. When they arrived at the farm, Robert
took out the .22 rifle that was in the truck, and Rousan grabbed a
lariat, three halters, and three lead ropes. They did not see any cattle
until they were sitting on a fallen tree behind the Lewises' barn and
seven young calves walked by. At this point Rousan told the two others
they were not going to take any because the cattle would be missed. They
started to leave just as a lawn mower started. Rousan was walking in
front of Brent and Robert when Brent took the gun Robert was holding and
said he was not going to leave without getting something. Brent then
shot at Mr. Lewis, who was on the lawnmower. Rousan and Robert then
proceeded to the Lewises' house to prevent anyone else from being killed.
Rousan instructed Robert to go through the front of the house, and
Rousan went in the back. When Rousan saw Robert, Robert informed him Mrs.
Lewis had gone out the front door.
At this point, Rousan looked out the front door to
find Mrs. Lewis coming toward the front door steps, moaning and holding
her bloody arms at her side. She climbed up the steps and collapsed on
the porch. Rousan went into the house, found a clothing bag, and wrapped
it around her body. He then carried her down the stairs where he placed
her on the ground with a pillow behind her head. At this point Rousan
would have testified that she was not breathing and had no pulse, so he
Robert then yelled that there was smoke coming from
the barn. Rousan stopped working on Mrs. Lewis because he could not get
a pulse and went with Robert to see what was going on. When they arrived
at the barn they found Brent trying to reload the gun. Rousan would have
testified that Brent was shaking and scared. Rousan asked him to give
him the gun, but he refused and continued to reload it. Rousan tried to
get the gun back by telling Brent that Mrs. Lewis was really hurt so
either he or Brent needed to finish her off. Rousan would have testified
that he never intended to harm Mrs. Lewis and merely wanted to get the
gun away from Brent, as he feared Brent might shoot him or Robert.
However, Brent would not budge. So, he instructed Brent to stay put, and
he and Robert returned to the house. When they returned, Rousan began
cleaning the blood off the steps. He put Mrs. Lewis, who he thought was
dead, under an oak tree and then went to the basement looking for paint
to cover the blood on the steps. While this was occurring, Brent came up
to the house and shot Mrs. Lewis because he thought she was moving.
Rousan stated that Sergeant Crump told him during questioning that his
son Brent would probably be on death row because they knew he was the
shooter. He claimed his first statement to the police, inconsistent with
this statement, was fabricated to help Brent avoid the death penalty.
Rousan also made statements about knowing Antonio Salazar and Ron
McKinney, who he claimed were in the drug trade, when in fact Salazar
was one of his prior attorneys, and McKinney was a man he had been
incarcerated with in Washington.
Rousan has not proved he was prejudiced by his
failure to testify. There is not a reasonable probability that if he
would have testified the result of the proceeding would have been
different. State v. Shurn, 866 S.W.2d 447, 468 (Mo. banc 1993),
cert. denied, 513 U.S. 837 (1994). Rousan's testimony would have
been subject to impeachment due to its inconsistency with his confession
to police -- in his confession he said he went to the farm to kill the
Lewises after Mr. Lewis had requested that he kill them.
Rousan next contends that defense counsel was
ineffective because they failed to call his son Brent to testify during
the guilt phase of the trial. According to Rousan's Rule 29.15 motion,
Brent would have provided a defense for him, as Brent would have
testified that they went to the farm just to steal cattle, and that
Rousan did not kill nor encourage Brent's killing of the Lewises. Rousan
contends that Brent wanted to testify for him, that his counsel did not
call him, and that their failure to call him was not trial strategy.
As noted, a decision not to call a witness is
presumed trial strategy unless clearly shown to be otherwise. Clay,
975 S.W.2d at 143.
Moreover, Rousan has not established that Brent would
have testified. Though Brent stated in his deposition that he would have
testified, Scholz testified that he met with Brent for about fifteen
minutes, and that at no time did he want to testify. Though there is a
conflicting story, the motion court was allowed to accept Scholz's
testimony and disbelieve Brent's. State v. Kelley, 953 S.W.2d 73,
93 (Mo. App. 1997). When defense counsel believes a witness' testimony "would
not unqualifiedly support his client's position, it is a matter of trial
strategy not to call him to the stand, and the failure to call such
witness does not constitute ineffectiveness of counsel." Murphy v.
State, 768 S.W.2d 171, 172-73 (Mo. App. 1998).
Rousan did not establish that counsels' failure to
call Brent was other than reasonable trial strategy. If Brent would have
testified, his credibility would have been diminished, and according to
Scholz, he would not have been a believable witness. This was based on
the fact that during his plea hearing he directly contradicted the story
he would have testified to during Rousan's trial, and as Scholz claimed,
it "locked in William's participation in the case." Brent's post-conviction
hearing testimony contradicted what he said during taped statements to
police, most of which were not favorable to Rousan. For instance, Brent
claimed at one point that Rousan put a bag over Mrs. Lewis' head and
told him to shoot her in the head. During his first taped statement to
police, Brent stated that Rousan shot Mr. Lewis three times, threw him
the gun, and told him to finish it. At the plea hearing, he again stated
that Rousan fired a couple shots, then threw him the gun, and told him
to finish it. At the plea hearing Brent also testified under oath that
he fired at Mrs. Lewis a few times, but that Rousan was the one who
fired the shot that actually killed her. Brent admitted via deposition,
at Rousan's post-conviction hearing, that his current testimony
contradicted what he said at his plea hearing and stated that he lied at
the plea hearing.
Rousan failed to show that Brent's testimony would
have provided a viable defense. As Scholz testified, Brent would have
been called if he would have "saved his father (Rousan) from culpability
in the shooting." However, if Brent testified, it clearly would not have
helped Rousan and would actually have damaged his defense. Brent
probably would have been impeached as to his contrary statements to the
police and at his plea hearing. Additionally, his statements implicated
Rousan as being the killer of both Mr. and Mrs. Lewis. It is clear that
not calling him was nothing other than reasonable trial strategy.
Pullen v. State, 895 S.W.2d 253, 255 (Mo. App. 1995).
Rousan alleges the motion court clearly erred in
denying his Rule 29.15 motion because his counsel was ineffective for
failing to present evidence of Rousan's attorney request form. Before
trial a suppression hearing, in which Rousan did not testify, was held.
The state's evidence showed that Rousan was arrested and made a
statement at the Washington County jail. He was advised of his
Miranda rights by Sheriff Bulloch while en route to the jail. Rousan
indicated he understood his rights. Rousan was advised not to make any
statements until arrival at the jail, and did not in fact make any
statements until he arrived.
After arrival at the jail, Rousan was placed in the
sheriff's office but was not questioned until Sergeant Joseph Crump
arrived. At this point, Sergeant Crump advised Rousan of his Miranda
rights, and Rousan told Sergeant Crump that he understood his rights.
Sergeant Crump asked Rousan if he was willing to talk at that time, and
Rousan said he was. Rousan indicated to Sergeant Crump that he was a
part of the murders and could show him where the bodies were located. A
little while later, Sergeant William Conway joined the interview. He and
Sergeant Crump questioned Rousan for about one and a half hours, but the
interview was not recorded. A break was taken and the officers asked
Rousan to make a recorded statement, which Rousan agreed to do. At the
beginning of his statement, Rousan was again reminded of his rights, and
he stated on tape that he knew he could quit the conversation whenever
he wanted to. There was no evidence presented at the suppression hearing
that Rousan requested an attorney at any time.
Rousan contended, however, in his amended post-conviction
motion and at his Rule 29.15 hearing that he was taken to a cell and
that when he arrived at the jail he asked Deputy Gilliam for an attorney
request form. He stated that he completed the attorney request form,(FN2)
gave it to Deputy Gilliam and Deputy Nicholson before going to the
sheriff's office, then informed Sergeant Crump about the form, and that
he did not want to talk. But he eventually gave a statement. He further
stated at his next court appearance that he saw the deputies give the
form to Wendy Wexler, an assistant public defender, that he discussed
the existence of the form with his counsel, and that the form was in his
trial counsel's possession during voir dire in Greene County. Rousan
then testified that he brought this issue up to his direct appeal
attorney, Elizabeth Carlyle, who looked through all the trial attorneys'
files but could not find the form. Carlyle then testified that when she
could not find the form in the files she had received, she contacted
trial counsel to make sure they had given her all the files, but she
received no more files.
Wolfrum did not remember any discussion about an
attorney request form, could not find it in his files, and did not
recall receiving it in Greene County. He did state, though, that he
would have asked the trial judge to re-open the suppression hearing if
the issue came up after the suppression hearing. Scholz remembered
Rousan referring to signing a form for an attorney, but stated that
Rousan did not describe the form well. He stated that he made numerous
efforts to find the form and find out what happened when he was arrested.
Scholz noted that forms for a defendant to request public defender
representation are available through the prosecutor, sheriff, and public
defender, and that the indigency application asks about finances and
whether the defendant wants to invoke his right to silence and be
represented by an attorney. Additionally, Scholz testified that
something new was brought into court by Wolfrum in Greene County, but he
did not remember what the item was. He thought it concerned witness
Samuel LaFrank, and stated that if it would have been the form Rousan
was referring to, he would have litigated the issue vigorously before
the court. Counsel could not find the form during direct appeal, and
Rousan failed to produce the form at the post-conviction hearing.
The motion court found this allegation was not
supported by credible evidence. The motion court did not clearly err, as
the above testimony fails to present credible evidence that an attorney
form was actually filled out. None of Rousan's counsel could find the
form, and Rousan could not produce it at his post-conviction hearing.
The only evidence presented at the post-conviction hearing was the
conflicting testimony of Rousan and his counsel, Wolfrum and Scholz. The
motion court was free to disbelieve Rousan's claim that he requested an
attorney prior to questioning, as a witness' credibility is the motion
court's responsibility in a post-conviction matter. Sage v. State,
978 S.W.2d 489, 490 (Mo. App. 1998). Additionally, the absence of any
other evidence allowed the motion court to conclude no such form existed.
State v. Landers, 969 S.W.2d 808, 812 (Mo. App. 1998).
Rousan claims the motion court clearly erred in
quashing his subpoena of the Missouri State highway patrol disciplinary
files of Sergeant Conway and Sergeant Crump, in failing to review the
records in camera, and in denying his Rule 29.15 motion. He
claims that he made a plausible showing of misconduct by the officers,
in that the officers disregarded his request for an attorney. He claims
he was prejudiced because the credibility of the officers is an
important issue in felony cases, and he was unable to establish a basis
for his trial counsels' ineffectiveness without these records. He claims
Wolfrum and Scholz were ineffective for failing to present the files.
Wolfrum testified at the Rule 29.15 hearing that
generally the background of the officers is not explored in the
investigation of a homicide. He did not remember Rousan speaking of any
problem with the police. He also believed that there can be problems
with the admissibility of such matters as they may be deemed irrelevant.
Scholz did not remember Rousan ever asking that an investigation of
Sergeant Crump and Sergeant Conway be conducted. Scholz testified that
he was unaware of anything that indicated a history of improper actions
by the officers other than being officers getting statements out of
defendants. Scholz stated that the defense theory was not that the
officers had beat or improperly forced Rousan to confess, and there was
nothing else that indicated anything in Rousan's case or in the
officer's history that made their personnel records relevant.
The motion court found that Rousan did not make a
sufficient showing as to the relevancy of the officers' backgrounds,
sustained the motion to quash, and refused to review the records in
camera. The court found that the evidence presented at the hearing
refuted Rousan's allegation that his counsel were ineffective.
Rousan's trial counsel could only be deemed
ineffective if these records would have been admissible at trial. Rousan
claims the state had a duty to disclose the files under Brady v.
Maryland, 373 U.S. 83 (1963), and United States v. Bagley,
473 U.S. 667 (1985), because they contained impeachment and exculpatory
evidence within the scope of the cases. In Brady, the United
State Supreme Court held that "the suppression by the prosecution of
evidence favorable to an accused upon request violated due process where
the evidence is material either to guilt or punishment." 373 U.S. at 87.
This holding applies not only to exculpatory evidence, but also to
impeachment evidence. Bagley, 473 U.S. at 676. In order to be
entitled to such information, a defendant must make a plausible showing
as to how the information would have been material and favorable to him.
State v. Parker, 886 S.W.2d at 916-17.
The files did not contain information about the
officers actions with regard to Rousan's case. Rousan failed to show how
the personnel files would be material to his guilt or innocence, as
there was no showing how the officers' past personnel files would relate
to their actions in this case and the records did not relate to his
guilt or innocence. Additionally, the records could not have come in to
impeach the officers, as it is a general rule of evidence that "[s]pecific
acts of misconduct not resulting in a conviction may be inquired about
on cross-examination if they relate to the truth and veracity of the
witness, but may not be proved by extrinsic evidence." John C.
O'Brien, Missouri Law of Evidence section 5-7 (3d ed. 1996).
The motion court did not clearly err, as the records were not admissible
for impeachment purposes.
Rousan next argues that counsel were ineffective
because they failed to move to have references to his prior convictions
for assault, rape, unlawful use of weapon, and escape redacted from the
recorded confession he made to the police. He claims that this
prejudiced him because it had no legitimate tendency to prove he was
guilty of first degree murder, and its only purpose was to inflame the
Rousan claimed Mr. Lewis asked him to kill Mrs. Lewis
to put her out of her misery and that Mr. Lewis wanted to be killed
because he could not live without his wife. Rousan also claimed that he
was hired by their son, Charles Lewis, IV, to kill them in exchange for
$50,000. Rousan continually maintained, however, that his actual
motivation for the murders was mercy. In his confession to the police he
interjected references about his prior convictions and misconduct
without any cajoling by the police. He believed if he did not testify,
his prior convictions would not come out during the guilt phase. Though
he did not testify at trial, the state introduced as evidence the tape
of his confession with no omissions. Defense counsel requested that the
part of Rousan's confession relating to running drugs be redacted, but
this request was overruled.
The motion court found that Rousan could not have
suffered prejudice by counsel's failure to redact his comments on prior
crimes as the police did not broach the subject, rather Rousan
interjected them on his own as part of the story he told police.
Additionally, his prior convictions had been mentioned during voir dire
when it was unclear whether Rousan would later testify, and the jury was
instructed at that time that the convictions could not be used as
evidence of guilt.
Though a confession is generally inadmissible when it
implicates that the defendant committed other offenses, there is an
exception: where "the part or parts relating to the other offenses . . .
are inseparable" from the part that relates to the crime for which the
defendant is being tried, "courts almost universally hold the evidence
admissible in its entirety, if given subject to a cautionary instruction."
State v. Brown, 584 S.W.2d 413, 415 (Mo. App. 1979). In Rousan's
confession, he told what the trial court deemed a "unique tale" to show
that the Lewises were killed out of mercy. He mentioned his other crimes
on his own accord when describing how he came to know Mr. Lewis, and
this was a set up to explaining why Mr. Lewis asked him to kill his wife
and him. If this portion would have been redacted, the tale would not
have been complete. Additionally, the statements that he made did not
contain details. Instead Rousan merely mentioned that when he hid in the
Lewises' barn, he had escaped from prison where he was being held for
raping and assaulting his girlfriend. He was not prejudiced because his
convictions had already been brought up to the jury in voir dire, and
the court had told the jurors that his past convictions could not be
used to find him guilty. Thus, the motion court cannot be said to have
clearly erred as there is no reasonable probability that the references
to his statements prejudiced him.
Rousan also claims Wolfrum and Scholz were
ineffective for failing to present Samuel LaFrank's testimony during the
guilt phase of his case. LaFrank was Robert Rousan's cellmate. He had
been convicted of statutory sodomy of a child, unlawful delivery of a
controlled substance, and some offenses related to motor vehicles.
LaFrank would have testified that Robert told him
there was no ringleader because they were just going to the Lewises'
farm to steal cattle, and that Mr. Lewis had come across the field on a
tractor, at which point Brent went back to the truck to retrieve the gun,
and shot Mr. Lewis. LaFrank also would have testified that Rousan tried
to take the gun from Brent, but Brent pushed him away and thereafter
shot Mrs. Lewis.
LaFrank was interviewed by Tony Kuntz, a defense
investigator, and based on his findings the defense decided not to call
him. Though defense counsel could not distinctly come up with a trial
strategy for their failure to call him as a witness, Scholz stated that
the sodomy conviction was a factor.
Rousan failed to show that he was prejudiced by
counsels' failure to call LaFrank. Counsel did call Timothy Barron, who
was also incarcerated with Robert Rousan. Barron had convictions for
four burglaries, sale of marijuana, stealing by deceit, and possession
of a burglary tool. He testified at trial that Robert told him Rousan
did not kill anyone and that it was Brent who, out of control, killed
the Lewises. Barron also testified that Robert told him he had made a
deal with the state for his testimony, and that if he did not go through
with it he would get the death penalty or go to prison for life. Robert
then told him it made no sense for everyone to go down for the crime.
Barron testified that he was in contact with Rousan while in the
Washington County jail, and that Rousan told him he was not guilty.
Though Rousan contends that Barron's statements were not cumulative of
LaFrank's testimony -- because LaFrank's testimony would have showed why
they went to the farm, and that the plan had not been to kill the
Lewises -- there is no reasonable probability that the outcome of the
trial would have been different if LaFrank had testified
Rousan next argues that counsel was ineffective for
their failure to object to two aggravating circumstances that he
contends were duplicative. The jury was given Instruction 25, based on
MAI-CR3d 313.40, and containing these aggravators, which Rousan
3. Whether the defendant murdered Grace Lewis for
another for the purpose of defendant receiving money or any other thing
of monetary value from Grace Lewis or another.
6. Whether the murder of Grace Lewis was committed
while the defendant was engaged in the perpetration of robbery.
Rousan cites many United States Supreme Court cases
to bolster his proposition that these are cumulative, but he ignores the
Missouri law that has consistently rejected this claim. State v.
Johnson, 22 S.W.3d 183, 191 (Mo. banc 2000), cert. denied,
121 S.Ct. 322 (2000) ; State v. Griffin, 756 S.W.2d 475, 489 (Mo.
banc 1988), cert. denied, 490 U.S. 1113 (1989); State v. Walls,
744 S.W.2d 791, 798-99 (Mo. banc 1988), cert. denied, 488 U.S.
871 (1988); State v. Jones, 749 S.W.2d 356, 365 (Mo. banc 1988),
cert. denied, 488 U.S. 871 (1988). An objection to the
instruction would have been meritless, thus counsel cannot be deemed
ineffective. Clay, 975 S.W.2d at 136.
Along with five other statutory aggravators,(FN3) the jury was
presented with the following statutory aggravator:
5. Whether the murder of Grace Lewis involved
depravity of mind and whether, as a result thereof, the murder was
outrageously and wantonly vile, horrible, and inhuman. You can make
a determination of depravity of mind only if you find:
That the defendant killed Grace Lewis after she was bound or
otherwise rendered helpless by defendant or William Brent Rousan and
that defendant thereby exhibited a callous disregard for the
sanctity of all human life.
Rousan's counsel failed to object to the aggravator,
which Rousan contends wrongfully asked the jury to consider whether he "killed"
Mrs. Lewis rather than "directed Brent Rousan to kill Grace Lewis."
Rousan took issue with statutory aggravators four and five on direct
appeal to this Court. This Court, performing plain error review, stated
that murder can be attributed to an accomplice, but not the act of
killing, because it is not a legal conclusion. Rousan I, 961 S.W.2d
at 852. Thus, the Court stated "it follows that a defendant who directed
another to murder a victim, could not also have 'killed' the victim."
Id. However, the Court stated that using the word "killed" rather
than "murder" was insufficient to amount to a miscarriage of justice,
because it was consistent with the state's theory and the jury's finding
at the closing of the guilt phase, which was that he was guilty of first
degree murder as an accomplice. Id. at 853. This Court pointed
out that it is well established that only one valid aggravating
circumstance is needed to uphold a sentence to death. Id. Thus,
even if the two statutory aggravators that he complained of, four and
five, were thrown out, the remaining aggravators were sufficient to
sentence Rousan to death. Id.
Rousan admits, as this Court stated in ruling on his
direct appeal, that Missouri requires only one valid aggravating
circumstance to uphold a death sentence. State v. McMillin, 783
S.W.2d 82, 104 (Mo. banc 1990), cert. denied, 498 U.S. 881
(1990). But he contends that the one valid aggravator cannot be presumed
to excuse a "constitutional error in the admission or exclusion of
evidence." Tuggle v. Netherland, 516 U.S. 10 (1995). However, as
this Court pointed out on direct appeal, Tuggle is not applicable
here, as it held that a valid aggravating circumstance was not always
sufficient to uphold the death sentence when there is a constitutional
error with respect to the "admission or exclusion of evidence." There is
no constitutional error in this case, and the aggravating circumstance
was sufficient to uphold the death sentence.
Rousan next claims ineffectiveness of counsel due to
counsels' failure to bring out Robert Rousan's inconsistent statement
regarding whether Rousan told him to wait while he (Rousan) secured the
premises. Robert testified at Rousan's trial that Rousan told him (Robert)
to wait while he (Rousan) secured the premises. But in Robert's initial
statement to Sergeant Conway and Sergeant Crump, Robert did not mention
such a statement. Rousan claims that if this inconsistency would have
been brought out at trial, it would have furthered the defense theory
that he did not plan on killing anyone when he went to the Lewises' farm.
He claims that such a statement rebutted the state's theory that he was
the "ringleader," and supported the conclusion that he was merely guilty
of second-degree murder. Rousan specifically states that neither
Sergeant Conway nor Sergeant Crump were questioned about the
inconsistency in Robert's statements.
Scholz noted that Robert's story had many inconsistencies, and that he
brought out the discrepencies he thought were important, which included
most of them. In fact, the record shows extensive cross-examination of
Robert, and contrary to Rousan's contention, it shows Robert was cross-examined
about his "securing the premises" statement. The extent of cross-examination
is usually a matter of trial strategy. Kelley v. State, 24 S.W.3d
228, 233 (Mo. App. 2000).
Rousan next claims that counsel were ineffective for
failing to present his BFI work records, which showed he worked from May
to August 1993. He claims this evidence would have shown that since he
was working he had limited time in which to plan the murders of Mr. and
Mrs. Lewis, engage in illegal drug activity, and case the Lewis farm.
Rousan feels he was prejudiced because this evidence would have
supported that he was guilty only of second-degree murder, and the
theory presented by defense, which was that he was not to be believed.
Rousan failed to show that counsels' failure to
present the BFI records was other than proper trial strategy. The
records only showed his gross earnings, withholdings, net pay, and that
he received paychecks weekly between May 8, 1993 and August 7, 1993.
Nothing in the records showed the times he worked, nor indicated his
wages such that his hours could be calculated. As defense counsel
Wolfrum testified, the records were not presented because they did not
preclude him from casing the farm.
Rousan next contends that counsel should have
objected to Robert Rousan's testimony. Rousan argues that this testimony
was improperly obtained from the state, because in exchange for his
testimony, the state offered Robert a second-degree murder conviction
and a fifteen year sentence. Rousan cites Rule 4-3.4 in support of his
contention, but that rule merely disallows a lawyer to offer a witness
an inducement that is prohibited by law. It does not refer to a state
offering an inducement. As for his assertion that the inducement given
to Robert was unlawful, he cites United States v. Singleton, 144
F.3d 1343 (10th Cir. 1998). However, Rousan's reliance on this case is
misplaced. While the Tenth Circuit originally ruled that a promise of
leniency violated a federal statute, it later overruled itself.
United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc),
cert. denied, 527 U.S. 1024 (1999).
Rousan lastly argues that counsel was ineffective for
failing to object to the death penalty sentence. He states that the
Eighth Amendment prohibits an accomplice convicted of first-degree
murder to be sentenced to death unless the accomplice killed, attempted
to kill, intended for the victim to be killed or that lethal force be
used. He contends that he did none of these. The motion court found that
"[w]hile a person cannot be sentenced to death solely based on the acts
of another, where the defendant's own acts showed an intention that a
murder be committed and the evidence shows deliberation by the defendant,
such defendant may be sentenced to death based on his own conduct."
See State v. Isa, 850 S.W.2d 876 (Mo. banc 1993). Rousan
asserts that the motion court misconstrued Isa, which also states
that "it is never permissible to sentence a person to death for the acts
of another." Id. at 902-03. But the motion court's conclusion is
not contrary to this proposition, as the court specifically stated that
"the defendant's own acts" must show the intention for murder to be
committed and that the evidence show that the "defendant" deliberated.
Rousan also argues that the sources of the evidence
to prove intent lacked credibility such that it was not clear that
Rousan intended to kill Mrs. Lewis. He bases this claim on the fact that
it took the jury several hours to reach a decision in both phases of the
trial. Rousan fails to note that counsel did move for acquittal at the
end of the state's case and argued in the motion for new trial that
there was insufficient evidence to sustain Rousan's conviction. Rousan's
confession to the police shows that he clearly deliberated about Mrs.
Lewis' murder. He told the police that Mr. Lewis had asked him to kill
Mrs. Lewis because she was sick, and that he finally agreed to kill both
Mrs. Lewis and Mr. Lewis. Additionally, Rousan described the trip to the
Lewises' house in his recorded statement to the police, saying: "We left
the house. Robert and Brent, they thought we were going to steal some
cattle. We weren't going to steal no cows. I didn't tell them, I didn't
want them to know. I didn't even know if I could do what I was setting
out to do anyway." Sergeant Conway also testified that Rousan told him
that on the way to the Lewises' farm that he told Brent that "they would
all fry" if they got caught.
Robert's testimony also points to the fact that
Rousan deliberated. He testified that when the three men approached the
Lewis farm, Rousan pulled out and loaded a semi-automatic rifle, which
he said was for use if anybody was there. When Brent exclaimed that they
needed to do what they were going to do, and not waste anymore time,
Rousan told him to wait until he (Rousan) and Robert secured the house.
Brent then shot Mrs. Lewis, although he only broke her arms. As Mrs.
Lewis headed into the house, Rousan grabbed her, and directed Brent to "finish
Though Robert's and Rousan's statements may have
contained inconsistencies, the "credibility and the effects of conflicts
or inconsistencies in testimony are questions for the jury." State v.
Jackson, 608 S.W.2d 420, 421 (Mo. banc 1980). On review this Court
must accept as true all evidence favorable to the verdict, including all
favorable inferences, and disregard all contrary evidence and inferences,
as "the Court's function is not to substitute its judgment for that of
the jury but to determine whether the evidence, considered in the light
most favorable to the state is sufficient to support the verdict."
State v. Strickland, 609 S.W.2d 392, 395 (Mo. banc 1980).
Additionally, a reviewing court does not weigh the evidence. State v.
Kelly, 539 S.W.2d 106, 109 (Mo. banc 1976). Rather, review of a
challenge to the sufficiency of the evidence "is limited to determining
whether there was sufficient evidence from which reasonable persons
could have found defendant guilty as charged." Id.
We have reviewed the findings and conclusions of the
motion court. We uphold the motion court's legal conclusion. Moreover,
there is no clear error in the court's factual findings. The judgment is
FN1. The defense stated that killing Rousan
would not bring backed the Lewises and that the jury had to consider the
purposes of punishment, including the "the purpose to protect society,"
which the defense stated would be accomplished by putting Rousan in jail.
To prove its point that society would be protected by Rousan being in
jail, defense counsel stated that "he won't walk away from Jeff City
walls or he won't walk away from Potosi Correctional Center, it's not a
pre-release farm or anything."
FN2. He testified that the attorney request
form asked for his name, address, social security number, financial
status, and where he worked. He noted that it also asked if he was
indigent, and whether he needed an appointed attorney to represent him.
FN3. The jury was given Instruction 25, based
on MAI-CR3d 313.40, which stated:
In determining the punishment to be assessed under
Count I against the defendant for the murder of Grace Lewis, you must
first unanimously determine whether one or more of the following
statutory aggravating circumstances exists:
1A. Whether the defendant was convicted of rape in the second degree
on August 12, 1998, in the Superior Court of Washington for King
County, State of Washington.
1B. Whether the defendant was convicted of assault in the second
degree on August 12, 1998, in the Superior Court of Washington for
King County, State of Washington.
2. Whether the murder of Grace Lewis was committed while the defendant
was engaged in the commission of another unlawful homicide of Charles
3. Whether the defendant murdered Grace Lewis for another for the
purpose of the defendant receiving money or any other thing of
monetary value from Grace Lewis or another.
4. Whether the defendant directed William Brent Rousan to murder Grace
5. Whether the murder of Grace Lewis involved depravity of mind and
whether, as a result thereof, the murder was outrageously and wantonly
vile, horrible, and inhuman. You can make a determination of depravity
of mind only if you find:
That the defendant killed Grace Lewis after she was bound or otherwise
rendered helpless by defendant or William Brent Rousan and that
defendant thereby exhibited a callous disregard for the sanctity of
all human life.
6. Whether the murder of Grace Lewis was committed while the defendant
was engaged in the perpetration of robbery.
You are further instructed that the burden rests upon the State to
prove at least one of the foregoing circumstances beyond a reasonable
doubt. On each circumstance that you find beyond a reasonable doubt,
all twelve of you must agree as to the existence of that circumstance.
Therefore, if you do not unanimously find from the evidence beyond a
reasonable doubt that at least one of the foregoing statutory
aggravating circumstances exists, you must return a verdict fixing the
punishment of the defendant at imprisonment for life by the Department
of Corrections without eligibility for probation or parole.
436 F.3d 951
Donald P. Roper, Superintendent, Potosi Correctional Center,
United States Court of Appeals, Eighth Circuit.
Submitted: November 16, 2005
Filed: February 8, 2006
Before MORRIS SHEPPARD ARNOLD, MURPHY and GRUENDER, Circuit Judges.
GRUENDER, Circuit Judge.
state court sentenced William L.
to death after he was convicted of two counts of first-degree murder.
The Missouri Supreme Court affirmed the
convictions and sentence and subsequently affirmed the denial of
Rousan's motion for post-conviction relief.
Rousan timely petitioned for a writ of
habeas corpus under 28 U.S.C. § 2254, seeking relief on nineteen
separate grounds. The district court1
denied habeas relief but granted a certificate of appealability on
eight of the grounds. Rousan now appeals
the denial of the writ on those eight grounds. We affirm.
In September 1993,
Rousan resided at the farm of his
girlfriend, Mary Lambing. Rousan, his son,
Brent Rousan ("Brent"), and his brother,
Robert Rousan ("Robert"), decided to steal
cattle from the nearby farm of sexagenarians Charles and Grace Lewis.
They drove to the Lewis farm in Rousan's
truck. During the drive, the three men discussed the prospect of
killing the Lewises and agreed that "if it had to be done it had to
parked the truck approximately two miles from the Lewis farm.
Rousan then pulled out Lambing's .22
caliber rifle and loaded it "in case anyone was home." Brent asked
to be the one who carried the rifle, stating that he was "man enough
to do whatever needed to be done and that he would use the weapon."
After debating whether Brent was "man enough,"
Rousan yielded the gun to Brent. He warned Brent that if they
were caught, they would "fry." The three men then approached on foot
to within viewing distance of the Lewis residence and sought cover
behind a fallen tree.
The three men lay in wait until
the Lewises returned to their residence that afternoon. Charles
Lewis mowed the lawn, while Grace Lewis talked on the phone to the
couple's daughter. Brent became impatient and said he wanted to "do
it." Rousan instructed Brent to remain
behind the tree while he and Robert secured the house. Before
Rousan reached the house, however, Charles
Lewis spotted Brent and shouted at him. Brent shot Charles Lewis six
times with the rifle, causing his death. Inside the house, Grace
Lewis told her daughter on the phone that she heard gunfire and hung
up. When Grace ran out the front door to investigate, Brent shot her
several times, fracturing both of her arms. Grace turned and ran
back into the house. Rousan followed.
Rousan placed a garment bag over Grace's
head and the upper part of her body, picked her up, carried her back
outside and placed her on the ground. At that point, Grace was still
alive. Rousan instructed Brent to "finish
her off." Brent fired one shot into Grace's head. That shot was
Brent and Robert took the bodies to the Lambing farm and buried them.
About a year later, Rousan's brother-in-law
called the police, believing the call to be anonymous, and informed
them where the Lewises' killer resided. The police traced the call
to Rousan's brother-in-law, interviewed him
for more information, and eventually apprehended
Rousan hiding on another nearby farm.
A jury found
Rousan guilty on two counts of first-degree murder for the
murders of Grace and Charles Lewis. The jury recommended a death
sentence on both counts, finding five statutory aggravating
circumstances in reaching each decision. The trial judge pronounced
a death sentence for the murder of Grace Lewis and a sentence of
life without parole for the murder of Charles Lewis. On direct
appeal, the Missouri Supreme Court affirmed
the convictions and sentences. State v. Rousan,
961 S.W.2d 831 (Mo. banc 1998). After exhausting his state-law post-conviction
remedies, see Rousan v. State, 48
S.W.3d 576 (Mo. banc 2001), Rousan sought a
writ of habeas corpus under 28 U.S.C. § 2254 on nineteen separate
grounds. The district court denied habeas relief but granted a
certificate of appealability on the following eight claims: (1) the
striking of three jurors for cause violated Rousan's
rights under the Sixth, Eighth and Fourteenth Amendments; (2)
insufficient evidence supported the conviction for first-degree
murder of Charles Lewis, violating the due process clause of the
Fourteenth Amendment; (3) the admission into evidence of victim
photographs violated due process; (4) trial counsel was ineffective
for failing to move to redact references to Rousan's
prior convictions when Rousan's statement
to police was introduced as evidence; (5) the prosecutor's penalty
phase closing argument violated due process; (6) a jury instruction
on accomplice liability prejudicially confused the jury, violating
due process; (7) a jury instruction on statutory aggravating
circumstances prejudicially confused the jury, violating
Rousan's rights under the Eighth and
Fourteenth Amendments; and (8) the trial court's refusal to instruct
on specific non-statutory mitigating circumstances, violating
Rousan's rights under the Eighth and
We review the district court's
findings of fact for clear error and its conclusions of law de novo.
Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir.2005). To
succeed on a claim for habeas relief under § 2254, an applicant must
show that the state court adjudication:
(1) resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States; or
(2) resulted in a decision that
was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
Antiterrorism and Effective Death
Penalty Act, 28 U.S.C. § 2254(d) ("AEDPA"). "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 `confronted 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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)) (alteration in Davis).
"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, 120 S.Ct.
1495) (alteration in Davis). In other words, it is not enough
for us to conclude that, in our independent judgment, we would have
applied federal law differently from the state court; the state
court's application must have been objectively unreasonable.
Lyons, 403 F.3d at 592. Finally, facts found by the state court
are presumed to be correct unless the applicant can rebut the
presumption by clear and convincing evidence. 28 U.S.C. §
A. The Striking of Three
Potential Jurors for Cause
claims the trial court violated his constitutional rights in
striking three potential jurors for cause. Potential jurors may not
be struck for cause simply because they state general conscientious
or religious scruples with regard to the death penalty. Gray v.
Mississippi, 481 U.S. 648, 657, 107 S.Ct. 2045, 95 L.Ed.2d 622
(1987). However, a potential juror may be struck for cause if his
views "would prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his oath."
Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d
841 (1985) (quotation omitted). In striking such a juror, it is not
necessary to prove with "unmistakable clarity" that a potential
juror's ability is impaired. Id.
points to statements made during voir dire by each of the three
potential jurors, venirepersons Cowan, Henkins and Davis, to the
effect that they could put aside their personal reservations and
apply the law as instructed with regard to the death penalty:
DEFENSE COUNSEL: [Y]ou personally
will be satisfied if they prove the defendant guilty beyond a
reasonable doubt to you, is that right?
DEFENSE COUNSEL: You won't make
them do more than what the law says, you will apply the burden of
proof which says that the State must prove the defendant guilty
beyond a reasonable doubt, that's the standard you use?
DEFENSE COUNSEL: Can you set aside
your opinion for the purposes of doing citizenship duty as a juror
...? HENKINS: I believe so.
COURT: Could you follow the
instructions and give realistic consideration to both sides?
COURT: Could you under any
circumstances return a verdict of death in a case?
Supreme Court summarized the voir dire of the three potential jurors
During the state's voir dire,
venireperson Cowan expressed doubt that he could vote for the death
penalty. He also stated that "there would have to be no doubt at all"
before he would vote to impose the punishment of death and that he
probably would require more proof of guilt in a capital case than in
other cases. In response to later questions, however, Cowan
equivocated about his ability to follow the law. Cowan stated that
he could sign the death verdict if he were foreman. During the
defense's voir dire, Cowan stated a number of times that he could
follow the law, but also stated once that he was not sure he could
do so. When later questioned by the court and by the state, Cowan
stated that he was not sure whether he would require extra proof in
a capital case and that he was not sure that his nerves would "hold
up" during the trial. Based in part on Cowan's increasing
indications of stress during voir dire, the court sustained the
state's motion to strike Cowan for cause.
Venireperson Henkins stated
unequivocally that she could not vote for the death penalty. She
later stated to appellant's counsel, "I can't conceive of me voting
that way." In response to further questioning about whether she
could set aside her opinion for purposes of doing her duty as a
citizen, however, Henkins offered, "I believe so."
The record shows that venireperson
Henkins repeatedly and unequivocally indicated that she could not
vote for the death penalty. Despite her one equivocal statement to
the contrary, the trial court clearly did not err in sustaining the
state's motion to strike venireperson Henkins for cause.
Venireperson Davis initially
equivocated about whether he could vote for the death penalty. In
response to further questions from the state about voting for the
death penalty, Davis stated, "It would be very hard, I honestly do
not know if I could do this." The state then asked whether Davis
could sign the death verdict if he were the foreperson. Davis stated
"no" and then repeated that he would be unable to do that. During
the defense's voir dire, Davis stated, "I honestly don't know that I
could vote for the death penalty." He later repeated his uncertainty
regarding his ability to impose this punishment.
Rousan, 961 S.W.2d at 839-40 (citations omitted).
Supreme Court then summarized its response to
Although the juror's ability to
follow the law is the ultimate issue in capital cases, the court
may, and should, consider a venireperson's answers to all questions
relevant to this issue, not just the questions phrased in one
particular way. In each of these cases, the totality of the voir
dire establishes that the trial court did not abuse its discretion
in sustaining the state's motion to strike for cause.
The availability of habeas relief
for a claim that the state court improperly struck a potential juror
for cause is both a legal and factual question. Kinder v.
Bowersox, 272 F.3d 532, 544 (8th Cir.2001). First, the
Missouri Supreme Court's holding was not
contrary to, nor an unreasonable application of, clearly established
federal law. The Missouri Supreme Court
correctly identified the governing principle—that the
ultimate issue is the potential juror's ability to follow the law as
instructed by the court, rather than the potential juror's personal
views about the death penalty. Gray, 481 U.S. at 657-58, 107
S.Ct. 2045; Wainwright, 469 U.S. at 424, 105 S.Ct. 844. It
was reasonable to apply that principle to the facts of the case by
examining the totality of the responses of each potential juror
during voir dire, rather than relying on isolated responses that
appeared favorable to Rousan's argument.
Second, there is no clear and convincing evidence to rebut the
presumption of correctness we must afford to the state court's
factual finding that the performance of the three potential jurors
would be substantially impaired. See Kinder, 272 F.3d at 543
("In this case, Judge Blackwell found that regardless of their
recantations or rehabilitation, the four jurors needed to be excused
for cause. It was `peculiarly within [the] trial judge's province'
to evaluate the `demeanor and credibility' of the venire members and
to make that determination.") (quoting Wainwright, 469 U.S.
at 428, 105 S.Ct. 844) (alteration in Kinder). Therefore, we
affirm the district court's denial of habeas relief based on the
claim that the trial court violated Rousan's
constitutional rights in striking three potential jurors for cause.
B. Sufficiency of the Evidence
to Support the Conviction for First-Degree Murder of Charles Lewis
contends that the evidence did not support a finding that he
deliberated in the killing of Charles Lewis. Under
Missouri law, deliberation, described as "cool reflection
upon the victim's death for some amount of time, no matter how
short," is required for a first-degree murder conviction under an
accomplice liability theory and may not be imputed from an
accomplice. State v. O'Brien, 857 S.W.2d 212, 217-18 (Mo.
banc 1993). Reviewing all the facts in a light most favorable to the
verdict, the Missouri Supreme Court
determined that a reasonable juror could have found deliberation
beyond a reasonable doubt. State v. Rousan,
961 S.W.2d at 841-42. That is precisely the analysis required by
federal law. See Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979).
We find no clear and convincing
evidence in the record to rebut the presumption of correctness in
the state court's factual finding. In particular,
Rousan's agreement that "if it had to be done it had to be
done," his act of loading the rifle "in case anyone was home" and
his warning as he handed the rifle to Brent that they would "fry" if
they were caught support the finding that Rousan
deliberated in the killing of Charles Lewis. Therefore, the district
court did not err in denying habeas relief on this ground.
C. The Admission into Evidence
of Victim Photographs
The trial court admitted seven
photographs of the victims' bodies taken after the bodies were
recovered. The bodies, recovered one year after the murders, were
severely decomposed. Rousan argues the
gruesome appearance of the bodies rendered the photographs unfairly
"Questions regarding admissibility
of evidence are matters of state law, and they are reviewed in
federal habeas inquiries only to determine whether an alleged error
infringes upon a specific constitutional protection or is so
prejudicial as to be a denial of due process." Logan v. Lockhart,
994 F.2d 1324, 1330 (8th Cir.1993). The petitioner must show that "the
alleged improprieties were so egregious that they fatally infected
the proceedings and rendered his entire trial fundamentally unfair."
Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir.1995) (quotation
Supreme Court found that the photographs were probative because they
"tended to corroborate the testimony of Robert
Rousan, one of the state's key witnesses," "assisted the jury
in understanding the testimony of the pathologist" and "assisted the
state's proof of deliberation" by showing that Grace Lewis was bound
and shot at close range, State v. Rousan,
961 S.W.2d at 844-45, and concluded that "this Court cannot say that
the allegedly prejudicial impact of these photographs outweighed
their probative value [or that] the admission of the photographs
caused the jury to act on the basis of passion, rather than reason,"
id. at 845. This was not contrary to, nor an unreasonable
application of, clearly established federal law. See Kuntzelman
v. Black, 774 F.2d 291, 292-93 (8th Cir.1985) (per curiam) (finding
no error of constitutional magnitude in the admission of "flagrantly
gruesome" photographs where the photographs "were at least arguably
relevant and probative in showing the identity and condition of the
deceased, the location of the wound, and the intent of [the
petitioner] in firing the shot that killed [the victim]"). We also
find that the admission of the photographs, even if it had been
erroneous, did not "fatally infect the proceedings," Anderson,
44 F.3d at 679, because "[t]he jury's finding ... clearly rests on a
substantial factual basis, even absent the photographic evidence in
controversy here," Kuntzelman, 774 F.2d at 292. Therefore,
the district court did not err in denying habeas relief on this
D. Ineffectiveness of Trial
Counsel for Not Moving to Redact References to Prior Convictions
from Rousan's Statement to Police
referred to his prior convictions in his videotaped confession to
the police. The police did not prompt Rousan
to talk about the convictions; rather, Rousan
volunteered the information to explain how he had initially met the
Lewises. Rousan v. State, 48 S.W.3d
at 590-91. The videotaped confession was played at trial, and trial
counsel objected to the inclusion of Rousan's
mention of his illegal drug use, but not to Rousan's
references to his other prior convictions for assault, rape,
unlawful use of a weapon, and escape. Rousan
argues that his trial counsel's failure to move to redact those
references from the confession allowed the jury to convict him
improperly on the basis of his prior convictions.
In order to overturn a conviction
on grounds of ineffective assistance of counsel, the defendant must
show that his trial counsel's performance fell below the standard of
customary skill and diligence that a reasonably competent attorney
would display and that there is a reasonable probability that the
outcome would have been different but for the substandard actions of
counsel. Strickland v. Washington, 466 U.S. 668, 694, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A reasonable probability is a
probability sufficient to undermine confidence in the outcome."
Supreme Court found no reasonable probability that the failure to
move to redact the references to those prior convictions prejudiced
Rousan because (1) the jury already had
learned of the prior convictions during voir dire and had been given
a limiting instruction that they could not use the convictions to
determine guilt or innocence, and (2) the objection would have been
fruitless because the references were necessary to explain the story
Rousan told in his confession.2
Rousan v. State, 48 S.W.3d at
590-91. The Missouri Supreme Court properly
applied Strickland, and its analysis was not contrary to, nor
an unreasonable application of, clearly established federal law.
Therefore, the district court did not err in denying habeas relief
on this ground.
E. The Prosecutor's Penalty
Phase Closing Argument
During penalty-phase rebuttal
closing argument, the prosecutor addressed the defense's request for
mercy. The prosecutor stated that "[m]ercy is good" but went on to
make the state's argument that Rousan did
not deserve mercy under the facts and circumstances of the case. The
prosecutor then concluded, "The defense has asked you for mercy and
what they are hoping for is weakness.... Weakness is something we
can no longer afford. Do your duty." Rousan
argues that the closing admonition not to be "weak" improperly
influenced the jury's decision to recommend the death penalty.
To grant habeas relief based on an
inappropriate comment from a prosecutor, the comment must be so
inappropriate as to make the trial fundamentally unfair. See
Darden v. Wainwright, 477 U.S. 168, 180-81, 106 S.Ct. 2464, 91
L.Ed.2d 144 (1986). There must be a "reasonable probability" that
the error affected the jury's verdict and that without the error,
the jury's verdict would have been different. Newlon v.
Armontrout, 885 F.2d 1328, 1336-37 (8th Cir.1989).
Supreme Court found that the prosecutor should have avoided
suggesting that the jury would be "weak" if it returned a certain
verdict. However, the Missouri Supreme
Court found no reversible error because the statement was brief,
isolated, and followed a proper discussion of mercy and the jury's
role in sentencing. State v. Rousan,
961 S.W.2d at 850-51. The Missouri Supreme
Court did not act contrary to, nor unreasonably apply, clearly
established federal law in determining that there was no reasonable
probability that the verdict would have been different absent the
prosecutor's statement. See, e.g., Kinder, 272 F.3d at 551
(holding it was not an unreasonable application of federal law for
the Missouri Supreme Court to find no
reversible error where the prosecutor stated during penalty-phase
argument that the defendant was "pure evil. Evil stares at you in
the courtroom, and I ask you to stare back and do not blink.... We
don't want to share our streets one day with evil. We cannot risk
one day sharing our lives and our world with evil."). Therefore, the
district court did not err in denying habeas relief on this ground.
F. The Jury Instruction on
The general accomplice-liability
jury instruction given in Rousan's trial
stated that "[a] person is responsible ... for the conduct of
another person ... if, for the purpose of committing that offense,
he aids or encourages the other person in committing it."
Rousan argues that the jury could have used
that instruction to ascribe to Rousan
liability for Brent's commission of first-degree murder without a
finding that Rousan deliberated. To support
a conviction for first-degree murder based on accomplice liability,
the deliberation element cannot be imputed; the state had to prove
deliberation by Rousan. State v.
Rousan, 961 S.W.2d at 841.
Where the defendant alleges that
jury instructions may have been erroneously interpreted, the proper
inquiry under federal law "is whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a
way that prevents the consideration of constitutionally relevant
evidence." Boyde v. California, 494 U.S. 370, 380, 110 S.Ct.
1190, 108 L.Ed.2d 316 (1990). In conducting this analysis, the jury
instructions must be viewed as a whole. Id. at 378, 110 S.Ct.
The instructions in this case are
similar to those we considered in Johns v. Bowersox, 203 F.3d
538 (8th Cir.2000). The petitioner in Johns challenged a
portion of the jury instructions that required the jury to find only
that either the defendant or his accomplice acted with
deliberation. Id. at 542-43. However, the verdict-directing
instruction also required a finding "that with the purpose of
promoting or furthering the commission of capital murder, the
defendant acted together with or aided or encouraged [the accomplice]
in committing that offense." Id. at 543 (emphasis added).
Applying the pre-AEDPA standard of review, we agreed with the
Missouri Supreme Court that these
instructions, viewed as a whole, "effectively required the jury to
find deliberation" by the petitioner. Id.
Similarly, in this case, the
verdict-directing jury instructions for both first-degree murder
counts required the jury to find that "the defendant aided, or
encouraged [the murder] and did so after deliberation, which means
cool reflection upon the matter for any length of time no matter how
brief," in order to find Rousan guilty.
See State v. Rousan, 961 S.W.2d at
847-48. The Missouri Supreme Court, viewing
the jury instructions as a whole, found no reasonable likelihood
that the general accomplice-liability instruction caused the jury to
ignore the explicit requirement for a finding of deliberation by
Rousan in the verdict-directing
instructions. Id. As suggested by Johns, the
Missouri Supreme Court's conclusion in this
case was not contrary to, nor an unreasonable application of,
clearly established federal law. Therefore, we find that the
district court did not err in denying habeas relief on this ground.
G. The Jury Instruction on
Statutory Aggravating Circumstances
contends that the jury instruction on statutory aggravating
circumstances in the murder of Grace Lewis prejudicially confused
the jury. Jury Instruction No. 25 read as follows (emphasis added):
In determining the punishment to
be assessed under Count I against defendant for the murder of Grace
Lewis, you must first unanimously determine whether one or more of
the following statutory aggravating circumstances exists:
4. Whether the defendant directed
Brent Rousan to murder Grace Lewis.
5. Whether the murder of Grace
Lewis involved depravity of mind and whether, as a result thereof,
the murder was outrageously and wantonly vile, horrible, and
inhuman. You can make a determination of depravity of mind only if
That the defendant killed Grace
Lewis after she was bound or otherwise rendered helpless by
defendant or Brent Rousan and that
defendant thereby exhibited a callous disregard for the sanctity of
all human life.
The jury found the presence of
five aggravating circumstances in the murder of Grace Lewis,
including the fourth and fifth aggravating circumstances as listed
Rousan argues that the use of the word "killed"
instead of "murdered" in describing the fifth aggravating
circumstance prejudicially confused the jury because "killing,"
unlike "murder," could not be imputed to Rousan
as an accomplice of Brent. Rousan contends
the jury was confused because it found that he both directed Brent
to commit the murder, as stated in the fourth aggravating
circumstance, and "killed" Grace Lewis himself, as stated in the
fifth. Because Rousan did not object to the
instruction at trial, this claim was reviewed by the
Missouri Supreme Court for plain error
resulting in manifest injustice.4
State v. Rousan, 961 S.W.2d at 852.
Where a petitioner claims that an
instruction confused the jury, federal law requires the court to
determine "whether the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due process."
Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d
385 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94
S.Ct. 396, 38 L.Ed.2d 368 (1973)). The challenged instruction "must
be considered in the context of the instructions as a whole and the
trial record." Id.
Supreme Court agreed with Rousan that the
fourth and fifth aggravating circumstances were inconsistent with
each other. However, it found the inconsistency would not undermine
confidence in the jury's penalty-phase deliberations because:
The state's theory throughout
trial, the evidence, and the jury's finding at the close of the
guilt phase supported a sole finding that appellant was guilty of
first degree murder as an accomplice; therefore, the statement in
the depravity of mind aggravator that "defendant killed Grace Lewis"
would be insufficient to confuse the jury as to the nature of
appellant's involvement in the murders.
Rousan, 961 S.W.2d at 853. The Missouri
Supreme Court's analysis of the allegedly confusing jury instruction
was not contrary to, nor an unreasonable application of, clearly
established federal law.
Supreme Court did invalidate the jury's finding that the fifth
aggravating circumstance was present because there was insufficient
evidence to show Rousan "killed" Grace
Lewis himself, rather than by imputation as an accomplice to Brent.
Id. However, that court found that even if the fourth and
fifth aggravating circumstances were both invalidated, the remaining
three aggravating circumstances found by the jury would still
support the death sentence because, under Missouri
law, "only one valid aggravating circumstance need exist to uphold a
death sentence." Id. Rousan contends
that a death sentence premised on a jury's finding of even one
invalid aggravating circumstance is unconstitutional because the
invalid aggravating circumstance may have skewed how the jury
weighed aggravating and mitigating evidence. We have long analyzed
the effect of an invalid aggravating circumstance on the
constitutionality of a death sentence by first determining whether
the defendant was sentenced in a "weighing" or "non-weighing" state.
See, e.g., Clay v. Bowersox, 367 F.3d 993, 1005 (8th
Cir.2004) ("In a nonweighing state such as
Missouri, a finding of one valid aggravating circumstance
renders harmless the conclusion that a second aggravating
circumstance was constitutionally infirm."); Sloan v. Delo,
54 F.3d 1371, 1385 & n. 13 (8th Cir.1995). However, in a recently
announced decision, Brown v. Sanders, ___ U.S. ___, 126 S.Ct.
884, ___ L.Ed.2d ___ (2006), the Supreme Court has stated that the "weighing/non-weighing
scheme is accurate as far as it goes, but it now seems to us
needlessly complex and incapable of providing for the full range of
possible variations" in state death-penalty sentencing procedures.
Id., ___, 126 S.Ct. 884. Instead, "we are henceforth guided
by the following rule: An invalidated sentencing factor (whether an
eligibility factor or not) will render the sentence unconstitutional
by reason of its adding an improper element to the aggravation scale
in the weighing process unless one of the other sentencing
factors enables the sentencer to give aggravating weight to the same
facts and circumstances." Id. at ___-___, 126 S.Ct. 884 (footnote
omitted). In other words, where the allegation of error is "the
skewing that could result from the jury's considering as
aggravation properly admitted evidence that should not have
weighed in favor of the death penalty," id. at ___, 126 S.Ct.
884, constitutional error occurs "only where the jury could not have
given aggravating weight to the same facts and circumstances under
the rubric of some other, valid sentencing factor," id. at
___, 126 S.Ct. 884. In addition to the narrow situation addressed in
Sanders, the Court recognized that constitutional error also
may arise from "other distortions caused by the invalidated factor
beyond the mere addition of an improper aggravating element." Id.
at ___, 126 S.Ct. 884 n. 6.
Analyzing California's death-penalty
sentencing procedure, the Supreme Court noted that the jury first
must find the existence of at least one statutory "eligibility
factor," or "special circumstance" in the parlance of the California
statute, to render the defendant eligible for the death penalty.
Id. at ___, 126 S.Ct. 884. If the jury finds one of these
eligibility factors, it then considers a separate list of "sentencing
factors" in determining whether the individual defendant merits the
death penalty. The list of sentencing factors directs the jury to
consider, among other things, any special circumstances found in the
eligibility phase and the circumstances of the crime in general.
Id. at ___, 126 S.Ct. 884. The jury in habeas petitioner
Sanders's case found four special circumstances to be present and
pronounced a death sentence; two of the special circumstances were
later invalidated by the state supreme court. Id. at ___-___,
126 S.Ct. 884. The Supreme Court found that the jury's consideration
of the two invalidated eligibility factors did not render Sanders's
death sentence unconstitutional because at least one eligibility
factor was valid and "[a]ll of the aggravating facts and
circumstances that the invalidated factor permitted the jury to
consider were also open to their proper consideration under one of
the other factors," namely the general circumstances-of-the-crime
sentencing factor. Id. at ___, 126 S.Ct. 884.
death-penalty sentencing procedure has the same salient aspects as
the California scheme considered in Sanders. In
Rousan's case, Jury Instruction No. 25
instructed the jury that "if you do not unanimously find from the
evidence beyond a reasonable doubt that at least one of the
foregoing statutory aggravating circumstances exists, you must
return a verdict [of] imprisonment for life." The statutory
aggravating factors fulfill the role of the "eligibility factors"
described in Sanders. Jury Instruction No. 26 instructed the
jury that, in the event it had found the presence of at least one of
the statutory aggravating circumstances listed in Instruction No.
25, it was then to consider all evidence from the guilt and penalty
phases of the trial and "decide 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."
This is analogous to the general circumstances-of-the-crime
sentencing factor in Sanders.
We find that the fourth and fifth
aggravating circumstances did not permit the jury to consider any
aggravating facts and circumstances that were not already "open to
their proper consideration" as stated in Jury Instruction No. 26.
Sanders, ___, 126 S.Ct. 884. Thus "[t]he erroneous factor[s]
could not have `skewed' the sentence, and no constitutional
Id. Furthermore, we find no constitutional error arising from
any "other distortions caused by the invalidated factor." Id.
at ___, 126 S.Ct. 884 n. 6; see supra 961-963 (discussing
Rousan's claim that the invalid factor
confused the jury).
We conclude that the
Missouri Supreme Court did not act contrary
to, nor unreasonably apply, clearly established federal law in
determining that the inconsistent wording in the fifth aggravating
circumstance did not prejudicially confuse the jury's death-penalty
deliberations and that the first three aggravating circumstances
found by the jury were each sufficient to permit the jury to
consider the death penalty. Therefore, we find that the district
court did not err in denying habeas relief on this ground.
H. The Trial Court's Refusal to
Instruct on Specific Non-Statutory Mitigating Circumstances
law lists seven specific mitigating circumstances that must be
included in the jury instructions in a death penalty case if
suggested by the evidence. R.S. Mo. § 565.032.3.
Rousan proposed two additional specific mitigating
circumstances for inclusion in the jury instructions that would have
directed the jury to consider his "early life and upbringing" and
the fact that "other participants in this crime have received
sentences of less than death." The trial court rejected the two
specific additional mitigating circumstances. However, the
instruction stated, "You shall also consider any other facts or
circumstances which you find from the evidence in mitigation of
punishment." Rousan contends that the trial
court's rejection of his two proffered specific circumstances
violated his rights under the Eighth and Fourteenth Amendments.6
Once a jury has determined,
through a process that channels and limits the jury's discretion to
ensure that the death penalty is not imposed in an arbitrary or
capricious manner, that a defendant is eligible for the death
penalty, the jury must be allowed to conduct "a broad inquiry into
all relevant mitigating evidence to allow an individualized
determination" as to whether the death penalty is warranted in a
specific case. Buchanan v. Angelone, 522 U.S. 269, 275-76,
118 S.Ct. 757, 139 L.Ed.2d 702 (1998). "[T]he State may shape and
structure the jury's consideration of mitigation so long as it does
not preclude the jury from giving effect to any relevant mitigating
evidence." Id. at 276. There is no requirement that the jury
be instructed on particular mitigating factors. Weeks v. Angelone,
528 U.S. 225, 232-33, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000). "[T]he
standard for determining whether jury instructions satisfy these
principles [is] `whether there is a reasonable likelihood that the
jury has applied the challenged instruction in a way that prevents
the consideration of constitutionally relevant evidence.'"
Buchanan, 522 U.S. at 276, 118 S.Ct. 757.
Supreme Court noted Rousan's acknowledgment
that it had repeatedly rejected this argument in other cases, and it
chose not to revisit the issue. State v. Rousan,
961 S.W.2d at 849. We have previously agreed with the
Missouri Supreme Court's determination that
an essentially identical instruction "adequately covered the jury's
consideration of mitigating evidence and complied with
constitutional requirements for the submission of mitigating
circumstances in death penalty cases." Tokar v. Bowersox, 198
F.3d 1039, 1050 (8th Cir.1999). Therefore, we find that the refusal
to list Rousan's proffered specific
mitigating circumstances in the jury instructions was not contrary
to, nor an unreasonable application of, clearly established federal
law. The district court did not err in denying habeas relief on this
We conclude that the district
court did not err in denying habeas relief on each of the eight
grounds for which Rousan was granted a
certificate of appealability. Therefore, we affirm the judgment of
the district court denying the writ of habeas corpus.