Marlin Gray v. Michael Bowersox ( 2002 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    _____________
    No. 01-1098EM
    _____________
    Marlin Gray,                             *
    *
    Appellant,                  *
    * On Appeal from the United
    v.                                 * States District Court for
    * the Eastern District of
    * Missouri.
    Michael Bowersox,                        *
    *
    Appellee.                   *
    ___________
    Submitted: December 13, 2001
    Filed: February 26, 2002
    ___________
    Before LOKEN, RICHARD S. ARNOLD, and BYE, Circuit Judges.
    ___________
    RICHARD S. ARNOLD, Circuit Judge.
    This is a death-penalty case in which the convicted defendant challenges his
    conviction and sentence by petition for writ of habeas corpus under 28 U.S.C. § 2254.
    The defendant, Marlin Gray, has been convicted and sentenced to death in connection
    with the murder of two sisters, Julie and Robin Kerry, in 1991. The District Court1
    1
    The Hon. Carol E. Jackson, United States District Judge for the Eastern
    District of Missouri.
    denied relief in a thorough opinion. This appeal is before us on four issues: three
    having to do with alleged improprieties in the prosecution's penalty-phase closing
    argument to the jury, and one ground claiming ineffective assistance of counsel in not
    objecting to certain general instructions given to the jury panel during voir dire.2
    We affirm the judgment of the District Court. With respect to the penalty-
    phase closing argument, we hold that some of the alleged improprieties were cured
    by rulings of the state trial court, and that two other arguments were either not
    improper or not prejudicial to the defendant in any material way. As to the comments
    of the state trial court to the jury panel during voir dire, we hold that ineffective
    assistance of counsel in failing to object has not been made out. Some of the
    comments were proper, so an objection, even if it had been made, would have been
    properly overruled. As to other parts of the comments, there is no reasonable
    probability, in our view, that they affected the outcome of this case, and therefore
    defendant cannot show the requisite prejudice.
    I.
    Petitioner did not kill Julie and Robin Kerry himself. Instead, according to the
    state and the verdict of the jury, he participated in a major way with three other men,
    Reginald (Reggie) Clemons, Antonio (Tony) Richardson, and Daniel Winfrey, in
    robbing the two victims and their cousin, Thomas Cummins, and in raping the two
    women. Under Missouri law, a person may be guilty of first-degree murder (and
    therefore eligible for the death penalty) without being the actual killer. Participation
    in the planning and execution of felonies, here rape and robbery, however, is not
    sufficient in and of itself. It must also be shown that defendant's associates
    committed murder, that defendant cooperated with them, and that defendant, after
    2
    This Court granted a certificate of appealability on these four issues by order
    entered February 6, 2001.
    -2-
    deliberation, acted with them to cause the deaths. Deliberation means cool reflection
    for any length of time, no matter how brief. Mo. Rev. Stat. § 565.002(3) (1986) (the
    version of the statute in effect at the time of these crimes). There must be some
    evidence that the defendant himself made a decision to kill the victims before the
    murder. State v. O'Brien, 
    857 S.W.2d 212
    , 218 (Mo. 1993) (en banc). The
    sufficiency of the evidence to establish Gray's guilt of first-degree murder is not one
    of the issues before us. Nonetheless, we briefly summarize the facts, both in order
    to give the reader the background of the case, and because the strength or weakness
    of the state's evidence is material to the question of prejudice. In doing so, we draw
    mainly on the opinion of the Supreme Court of Missouri affirming the conviction and
    sentence. State v. Gray, 
    887 S.W.2d 369
    (Mo. 1994) (en banc), cert. denied, 
    514 U.S. 1042
    (1995).
    The crimes occurred on the night of April 4-5, 1991, on the Chain of Rocks
    Bridge over the Mississippi River at St. Louis, Missouri. The bridge had been
    abandoned for some time. It was a popular party spot for teenagers and young adults.
    The two victims, Julie Kerry, age 20, and her sister Robin Kerry, age 19, met their
    cousin, Thomas Cummins, also 19, shortly before midnight, and took him to the
    bridge. They wanted to show him a graffiti poem they had previously painted on the
    bridge deck. When they got to the bridge, the Kerry sisters and Cummins met Gray,
    Winfrey, Clemons, and Richardson. Richardson and Winfrey were 16 and 15 years
    old respectively. Gray was the oldest and largest of the group.
    After some conversation, the two groups separated, the Kerrys and Cummins
    walking east, towards Illinois, and Gray's group walking west, towards Missouri.
    During this walk, Clemons suggested to his three companions that they rob Cummins
    and the Kerrys. Gray smiled, clapped his hands, and said, "Yeah, I feel like hurting
    somebody." They began walking back towards the Kerry group. During the walk,
    Gray and Clemons had a conversation. Gray then handed Winfrey a condom, and
    Winfrey said he "wasn't going to do anything." Gray and Clemons pushed Winfrey
    -3-
    against the railing of the bridge and said, "You're gonna do it." Winfrey then agreed
    to "do it."
    The two groups met. Gray put his arm around Cummins and walked him ten
    to fifteen feet away. He told him, "This is a robbery. Get down on the ground." Gray
    told Cummins that if he looked up, Gray would kill or shoot him. At the same time,
    the other three confederates grabbed the two women, who screamed. One of the men
    said, "[D]o you want to die?" and ordered the girls to stop screaming or the speaker
    would "throw you off this bridge." It is a fair inference that defendant heard these
    statements, if he did not make them himself.
    Clemons then raped Julie Kerry. Richardson held her. Richardson raped
    Robin Kerry. At some point, while these rapes were occurring, defendant went back
    to where Cummins was lying on the ground and said, "I've never had the privilege of
    popping somebody. . . . [I]f you put your head up or try to look, I'm going to pop
    you." Gray then told Winfrey to watch Cummins. Gray, with the assistance of
    Clemons, then raped Robin Kerry. While this rape was occurring, Richardson forced
    Julie Kerry into a manhole on the bridge deck. The manhole led to a metal platform
    and a concrete pier that supported the bridge. Gray had earlier shown this location
    to his three associates and to the Kerry group. When he had finished raping Robin,
    Gray went to Winfrey and asked where Richardson had gone. Winfrey pointed to the
    Missouri side of the river, and defendant ran off in that direction. Clemons then
    forced Robin Kerry and Cummins into the manhole and told Winfrey to find Gray.
    Julie and Robin were then pushed into the river, a distance of fifty to seventy feet.
    They were killed. Cummins was told to jump, and he did. He survived to testify at
    Gray's trial. Meanwhile, Winfrey had found Gray, and they were returning back to
    the bridge. Clemons and Richardson met them. Clemons said, "We threw them off.
    Let's go." The group then left the bridge. Clemons said, "They'll never make it to
    shore." Gray praised Richardson for being "brave" to push the Kerry sisters off the
    bridge.
    -4-
    Gray himself did not do the killing or directly participate in it. He did,
    however, participate in the planning of the robbery and the planning and execution
    of the rape. He twice threatened to kill Cummins, which shows murderous intent. He
    continued in the criminal enterprise. He knew that the women had been threatened
    with death. He complimented his friends on the killings after they had occurred.
    There is ample evidence here of participation and deliberation to justify a verdict of
    guilty on charges of first-degree murder.
    II.
    We address first petitioner's contentions with respect to the voir dire, because
    these arguments, if upheld, would result in vacation of the conviction as well as the
    sentence, and require a complete new trial. Petitioner claims that his lawyer was
    ineffective in not objecting to certain comments made by the state trial court during
    the voir dire of the jury panel. The voir dire was conducted in panels of twelve or
    more. The following statements are representative of those to which petitioner says
    his trial lawyer (not counsel presently representing him) should have objected:
    The next thing I want to talk about is another legal
    principle and that's called, that's a little bit different. You
    may not have heard of this one before. It's not as common
    as the first. It's something that is called acting with
    another. That is when you have more than one individual
    involved in an alleged crime and you charge all, the State
    charges all those people as acting with each other to
    commit the crime, okay.
    Let me give you two examples. Example number one, Tom
    and Joe are going to rob a bank. Tom is the driver. He
    pulls up in front of the bank. Joe gets out, goes into the
    bank, pulls a gun, takes the money, shoots the teller, gets
    back in the car that's running and they flee.
    -5-
    Both are equally responsible for the robbery and murder
    under the law. That's acting with another, the part he
    participated in. Now he wasn't just hanging out in front of
    the bank and just happened to see it. He was involved in
    the planning and implementation of this robbery and
    murder. That's what acting with another is.
    Example number two, Tom and Joe are fighting with Harry
    in a fistfight. Tom's holding Harry and Joe's hitting him.
    Joe gets real upset, pulls out a knife, let's say, stabs him,
    he's dead, or pulls out a gun and shoots him or pulls a brick
    from the ground and hits him in the head. Harry dies.
    Tom is holding Harry. Tom is just as guilty of murder in
    the first degree or could be just as guilty of murder in the
    first degree as Joe. That's what acting with another is. It
    means more than, hey, he just happened to be there. He
    has to be involved. He has to assist.
    Tr. 621-22.
    The purpose of these remarks was to explain to the jury the concept of
    accomplice liability — that someone other than the actual killer can, under certain
    circumstances specified by law, be guilty of first-degree murder and eligible for the
    death penalty. When read carefully, literally, and as a whole, the trial court's remarks,
    in our view, may have been a correct statement of Missouri law, as far as they went.
    The court did not, as petitioner now complains, tell the venire that anyone who
    participates in a felony, during the course of which someone else commits first-degree
    murder, is also guilty of the same crime. In the first example given by the court, the
    bank-robbery case, Tom, the non-shooter, is not merely the getaway man. "He was
    [also] involved in the planning and implementation of this robbery and murder."
    (Emphasis added.) In the second example, Tom, again the non-shooter, is holding the
    victim when his associate kills him. Tom is guilty of murder if he is "involved" and
    -6-
    "assist[ed]." Or, at least, he "could be" guilty of murder under these circumstances.
    On the other hand, there is no mention of the element of deliberation (though perhaps
    it is implicit), and, as the Supreme Court of Missouri remarked, a good deal more was
    said than needed to be. The commentary "may conceivably [have led] to confusion."
    State v. 
    Gray, supra
    , 887 S.W.2d at 379.
    Petitioner also cites the following discussion of the concept of reasonable
    doubt:
    It doesn't matter if it's a traffic ticket, if it's a traffic ticket
    and the most that can happen to you is you get fined ten
    bucks, or if you are charged with murder first-degree and
    the penalty is death. So the proof beyond a reasonable
    doubt is what the standard of proof is in all criminal cases.
    The law does not require the State to prove a higher burden
    of proof simply because the punishment is more severe.
    Does everybody understand that? Is there anyone who
    disagrees with that? No, okay.
    Tr. 220-21. The court also said:
    What reasonable doubt means to you is going to be
    different than what it means to me. There's just no way
    we're going to be alike, but can you follow the law? Is
    there anyone who cannot follow the law as it relates to
    beyond a reasonable doubt? Okay.
    Tr. 342-43.
    Parts of these remarks are problematic. It is true, in theory anyway, that the
    burden of proof is the same in all criminal cases. On the other hand, the apparent
    -7-
    equation of a traffic ticket and the death penalty could have been taken to detract
    from the seriousness of a jury's decision with respect to life or death. Second, it is
    probably true that different people will apply the concept of reasonable doubt in
    different ways, or, at least, that different people may disagree about the result of its
    application. This does not mean, though, that the definition is different for different
    people. All jurors are obliged to take the definition as given by the court and apply
    it to the best of their individual abilities.
    We can think of reasons why a prudent lawyer would not have wished to
    interrupt the judge with objections at these points in the proceedings. The remarks
    were objectionable in part, but not in their entirety. An objection might have led to
    the court's repeating certain parts of the remarks, giving them an emphasis that a
    prudent defense lawyer might have thought inopportune. In addition, a lawyer might
    not wish to begin a trial, even before a jury has been selected, by appearing
    combative. We are admonished not to use hindsight in judging the conduct of
    lawyers, especially in the heat of a trial. So we are not sure that what the lawyer
    failed to do here, though it fell short of perfection, amounted to ineffectiveness in the
    constitutional sense.
    In any case, part of the petitioner's burden on an issue of this sort is to show
    prejudice, which is defined as the existence of some factor that undermines a
    reviewing court's confidence in the verdict. See Strickland v. Washington, 
    466 U.S. 668
    , 694 (1984). The remarks at issue here occurred at the very beginning of the trial,
    at a time when no individual knew that he or she would be on the jury. All of the
    evidence and all of the argument of counsel intervened before the jury began to
    deliberate. And most importantly, the instructions actually given by the court on the
    issues of accomplice liability and reasonable doubt were correct. We see no
    appreciable chance that the jurors actually selected would have been governed by
    some of the implications of the court's statements on voir dire, instead of by the
    instructions actually given. Accordingly, we hold that no prejudice in the Strickland
    -8-
    sense has been shown, and we reject this first argument urged by petitioner. We
    agree with the Supreme Court of Missouri that "the jury instructions submitted by the
    court on the concepts of reasonable doubt and accessory liability had the effect of
    correcting any potentially misleading statements that might have resulted from the
    voir dire." State v. 
    Gray, supra
    , 887 S.W.2d at 379.
    III.
    Petitioner's other arguments have to do with the penalty phase of the trial. If
    they were to succeed, they would not result in a setting aside of the conviction, but
    rather in a new penalty-phase proceeding.
    A.
    First, petitioner objects to evidence introduced during the penalty phase with
    respect to certain of the victim's activities, including their "liberal" political views,
    their interest in social change, and their involvement in community activities. It was
    also improper, petitioner says, for the prosecutor to refer to this evidence during
    closing argument. We disagree. "Victim impact evidence" is not per se inadmissible
    under the Eighth Amendment. The prosecution is allowed to show the "specific harm
    caused by the defendant." Payne v. Tennessee, 
    501 U.S. 808
    , 825 (1991). It can
    show that the " 'victim is an individual whose death represents a unique loss to
    society and in particular to his family.' " Ibid., quoting Booth v. Maryland, 
    482 U.S. 496
    , 517 (1987) (White, J., dissenting), a case overruled by Payne. Victims' civic
    activities and involvement in the community are part of their lives, part of what has
    been lost on account of their death. Certainly it is true that the life of a "liberal" is
    worth no more than that of a "conservative," and it would be a violation of the First
    Amendment, if not of the Eighth, for a court or a jury to make such a distinction. The
    prosecution, however, must take the victims' lives as it finds them. The argument was
    not unduly emphasized, nor was the jury invited to impose the death penalty on
    -9-
    account of the political viewpoint espoused by the victims. Indeed, the argument
    might be regarded as a dangerous one for the prosecution, in that it conceivably could
    have offended members of the jury who disagreed with the victims' political
    activities. In any case, the argument was not unduly prejudicial and does not violate
    either the Eighth Amendment or the Due Process Clause of the Fourteenth.3
    B.
    Next, objections are made to certain other passages in the prosecutor's closing
    argument in the penalty phase. The prosecutor made three references to the Charles
    Manson case. Objections were sustained to the first and third references, but no
    contemporaneous objection was made to the second one. We summarize what
    happened.
    The prosecutor made the following statement:
    You know, I sat here, also, yesterday listening to his
    witnesses and I got this strange feeling that, you know,
    something was wrong here. Couldn't put my finger on it.
    I kept seeing the witnesses and seeing the witnesses. As I
    pointed out they're white, middle class, problem, not
    accepted at home for some reason or another, low self
    esteem. I said something's — and then I looked at, you
    know, I talked about this crime. And it struck me. Do you
    remember California? Do you remember the man that
    never went into the house?
    3
    Petitioner also argues that he received ineffective assistance of trial counsel
    because counsel did not object to the evidence and argument in question. Whether
    such a claim is included within the certificate of appealability is debatable. In any
    event, because the underlying objection would have been without merit, a claim of
    ineffective assistance is not viable.
    -10-
    MS. HIRZY: I'll object, your Honor, to any outside
    reference to any other case.
    THE COURT: I'll sustain the objection.
    MS. HIRZY: Ask the jury be instructed to disregard.
    THE COURT: I'll make that instruction.
    MR. MOSS: Can we approach the bench.
    (At this time a bench conference was held.)
    MR. MOSS: There are no restrictions in here as
    long as I don't call him Hitler and I don't call him —
    THE COURT: What are you going to talk about?
    MR. MOSS: I'm going to talk about the Manson
    murders and how the manipulation occurred there.
    MS. HIRZY: There's been no evidence presented
    and you can't just bring in any facts.
    MR. MOSS: This is not an evidence matter.
    THE COURT: This is, look, your argument is going
    to be manipulation?
    MR. MOSS: Manipulation of women and of weaker
    younger people who have problems that the guy that did
    that —
    THE COURT: You're not going to call this guy
    Manson, are you?
    MR. MOSS: No.
    -11-
    THE COURT: I'll overrule the objection.
    Tr. 2705-06.
    The objection is that nothing about the Manson case had been put in evidence,
    and that referring to it was irrelevant to the individual blameworthiness of the
    defendant and likely to inflame the emotions of the jury. We find the reference to the
    Manson case rather obscure. We do not know how the jury understood it, nor are we
    sure that we ourselves would have made the connection. In any case, the court, in the
    presence of the jury, sustained the objection and stated, after being asked to instruct
    the jury to disregard, "I'll make that instruction." Although this statement, read
    literally, is in the future tense, we think the jury would have understood from the
    context that the court had ruled the prosecution's remarks improper, and that they
    were not to consider them.
    The later colloquy among court and counsel, resulting in the statement "I'll
    overrule the objection," occurred at a bench conference, out of the presence of the
    jury.
    The argument then continued:
    MR. MOSS: Well, the names, you know, Charles
    "Tex" Watson came to me, Patricia Krenwinkle, Squeaky
    Fromme. You know, those names came to me and I said,
    what the heck, you know, why did that jump into my mind
    and I couldn't understand it. And then basically it came
    that people who are weaker, younger, problematic, can be
    manipulated and dealt with by somebody who is apparently
    stronger, who like their leader, you know, was a poet,
    played the guitar, fancied himself a songwriter, but really
    had a problem.
    -12-
    The point is here, what you've got to understand is
    that you don't need to be there as you told me when you
    push them off, not if you've done all the handiwork
    beforehand. You don't need, you don't need to be the last
    one that shoves them off and hears them screaming as they
    go down.
    Tr. 2707.
    No objection was made to this particular portion of the argument. Again,
    however, the reference to the Manson case is obscure. Manson's name was not
    mentioned. We have no idea whether the jury would have connected the names that
    were mentioned with Manson. The overall point, that someone can be lawfully
    subjected to the death penalty even if he is not "the . . . one that shoves them off and
    hears them screaming as they go down" is not at all an improper argument. We do
    not fault counsel for not objecting at this point. Assuming that the jury connected
    both the first and second passages we have quoted with the Manson case, and
    believed it was being invited to consider petitioner a person as evil as Charles
    Manson, the jury would also no doubt remember that it had just been told that a
    similar argument was objectionable, and should be disregarded. Counsel may have
    thought that the objection need not be repeated. In any case, we are not convinced
    that this particular reference affected the verdict in any appreciable way.
    Finally, during the prosecution's penalty-phase rebuttal, the prosecutor made
    the following argument:
    And that these ladies [referring to defense witnesses]
    would come in here and lie. Remember the case I was
    referring to in California. Do you remember the young
    ladies who were, of course, charged and the man, young
    man? But do you also remember the people that came
    -13-
    outside the courthouse and when he shaved his head they
    shaved their heads and sat individually —
    MS. HIRZY: I'm going to object again to this, your
    Honor.
    THE COURT: Objection is sustained. Proceed.
    MS. HIRZY: Ask the jury to disregard.
    THE COURT: The jury is ordered to disregard.
    Proceed.
    Tr. 2719-20.
    As in the case of the first passage complained of, the court told the jury, this
    time without even arguable equivocation, that the remarks were objectionable, and
    that the jury should disregard them (this time using the present tense). The court's
    action was unambiguous. The only thing further that could have been done was to
    order a mistrial, and we do not see this incident as approaching such a level of
    prejudice. The prosecutor was attempting, apparently, to draw some kind of parallel
    between Manson's coterie and the witnesses for the defendant. Maybe the jury
    understood this attempted inference, but, if it did, it was promptly instructed to
    disregard it. We routinely assume that juries follow the court's instructions.4
    We add a word with respect to the underlying merits of petitioner's arguments.
    He cites, among other cases, Newlon v. Armontrout, 
    885 F.2d 1328
    (8th Cir. 1989),
    4
    Again, an ineffective-assistance argument is made. Assuming that it falls
    within the scope of the certificate of appealability, we reject it. Those arguments to
    which counsel failed to object, in our view, had no appreciable effect on the outcome
    of this case.
    -14-
    cert. denied, 
    497 U.S. 1038
    (1990). We think the argument in Newlon was much
    more egregious. The Supreme Court of Missouri aptly observed:
    In Newlon the state peppered its "send a message"
    argument with the names of Manson, Speck, and Son of
    Sam, even though there was no connection of those crimes
    to facts in the case under consideration. In contrast to
    Newlon, the state's reference [in the instant case] to the
    Manson "family" was quite limited and relevant to explain
    how a leader can manipulate his followers. Additionally,
    the court in Newlon found error in the totality of the state's
    argument which also included, "If [defendant] was going
    to harm your child, would you kill him? . . . If you think
    you would have, kill him now. Kill him now . . .. I'm
    talking to you as prosecuting attorney of this county — the
    top law enforcement officer in St. Louis 
    County." 885 F.2d at 1342
    . Newlon is 
    distinguishable. 887 S.W.2d at 388
    . Shurn v. Delo, 
    177 F.3d 662
    (8th Cir.), cert. denied, 
    528 U.S. 1010
    (1999), and Antwine v. Delo, 
    54 F.3d 1357
    (8th Cir. 1995), cert. denied, 
    516 U.S. 1067
    (1996), are distinguishable on similar grounds.
    C.
    Finally, petitioner contends that the prosecutor appealed to racial prejudice in
    his penalty-phase closing argument. In describing some of the defendant's witnesses,
    the prosecutor said:
    What other things do we know about the defendant?
    Did you notice who came in here? Did you notice who his
    friends were? Is there some significance there? Think
    about it for awhile. Normally they were female. Normally
    -15-
    they were white. Normally they were middle class.
    Normally they had a problem at home, self esteem,
    something else. Normally they were not physically what
    you would call overly attractive.
    Tr. 2702. No objection was made to this statement. Certainly it is true that the race
    of the defendant's witnesses was not relevant. Petitioner argues that the jury was
    improperly invited to take race into account. He points out that the victims were
    white, and that he, Gray, was black. On the other hand, one of the co-conspirators
    was white.
    We do not see that any substantial prejudice resulted from these isolated
    remarks. In her closing argument, defense counsel pointed out that the race of Gray's
    friends was not relevant, and that the sentencing decision was a "human decision."
    Tr. 2716. The court instructed the jury that the arguments of counsel are not
    evidence. On this record, we have no reason to believe that the instruction was not
    effective. The evidence of petitioner's involvement was not so overwhelming as to
    make a verdict of death inevitable, but it was strong. More than this would be
    required for us to disregard the presumption that the jury gave no consideration to the
    irrelevant factor of race. As the Supreme Court of Missouri said, "[t]here is no
    significant likelihood that racial bias influenced the jury in this case." State v. 
    Gray, supra
    , 887 S.W.2d at 388.
    IV.
    We have considered all of the arguments included within the certificate of
    appealability with the seriousness and gravity that the nature of the case demands.
    We hold that they are without merit. We express our appreciation to court-appointed
    counsel for petitioner for their dedicated service.
    -16-
    The judgment of the District Court, dismissing with prejudice the petition for
    writ of habeas corpus, is
    Affirmed.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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