5th murderer executed in U.S. in 2011
1239th murderer executed in U.S. since 1976
1st murderer executed in Missouri in 2011
68th murderer executed in Missouri since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(5) |
Martin Link W / M / 27 - 47 |
Elissa Self-Braun W / F / 11 |
Summary:
Just before 6:30 a.m., 11 year old Elissa Self left her house in St. Louis for the bus stop to a school for gifted children. When she did not arrive, the school called Elissa's parents, who called the police. Four days later, her body was discovered in the St. Francis River near a recreation area, 135 miles south of St. Louis. Link was later pulled over on a traffic stop, and after a high speed chase, officers found a jar of petroleum jelly with Link's fingerprints on the jar and flecks of blood embedded in the jelly. DNA tests conducted by two different labs showed that Link's DNA matched the DNA found in sperm cells on vaginal swabs taken from Elissa's body. The state's DNA expert set the odds of such a match at one in 6,600. The testing also revealed that Elissa's DNA matched the DNA in the blood found in the petroleum jelly jar seized from Link's car. The odds of that match were one in 48. The joint probability of both of these matches occurring by chance was less than one in 300,000. At trial, Link called two DNA experts to testify that the DNA tests performed by the other two laboratories were faulty, and that the probabilities were incorrect.
Citations:
State v. Link, 25 S.W.3d 136 (Mo. 20000) (Direct Appeal).
Link v. Luebbers, 469 F.3d 1197 (8th Cir. 2006) (Habeas).
Final Meal:
A sausage and pepperoni pizza, lasagna, garlic bread, a chef's salad, New-York-style cheesecake, a strawberry shake and Dr. Pepper
Final Words:
"The state says killing is wrong, so why do they do it? For revenge. Where is the closure? There is none. The death penalty is an act of revenge. Many men sit on death row, some innocent, some not. So what happens when a man is executed and it's later learned he was, in fact, innocent? He can't be brought back."
Internet Sources:
State of Missouri v. Martin Link
25 S.W. 3d 136 (Mo. banc 2000)
Martin Link was executed on February 9, 2011.
Case Facts: On Friday, January 11, 1991, just before 6:30 a.m., eleven-year-old Elissa Self left her house at 3844 Humphrey Street in South St. Louis to walk less than three blocks to catch her bus to Enright Classical Junior Academy, a school for gifted children. It was a cold, rainy morning, and Elissa’s mother insisted that she wear boots and carry an umbrella. Elissa never arrived at school, and at about 8:20 a.m. the school called Elissa’s parents to tell them that Elissa was not present. Elissa’s parents drove around the neighborhood looking for her, but they were unable to her, and they went home and called the police.
During the next four days, police canvassed the neighborhood, interviewed possible witnesses, and investigated calls and letters on possible sightings. On Tuesday, January 15, 1991, two persons who were scavenging at the Black Bridge recreation area along the St. Francis River, 135 miles south of St. Louis in Wayne County, found Elissa’s body in a large pile of debris that had washed up on the river bank. Police soon searched the area and found Elissa’s boots, but none of her other belongings. One of the small boulders that defined the perimeter of the parking area had been pushed out of place, and there was a tire rut in the gravel leading up to that boulder.
At about 9:24 p.m., on January 26, 1991, eleven days after Elissa’s body was found, a City of Kirkwood police officer saw Martin Link driving with a headlight out and at tempted to pull him over. Link led the officer on a high-speed chase, eventually crash- ing his car into a telephone pole, and was then taken into custody. In a search of the car, officers found a jar of petroleum jelly with Link’s fingerprints on the jar and flecks of blood embedded in the jelly. In addition, officers took tape lifts from the inside of the car in order to obtain fiber evidence.
During the investigation, officers discovered that Link had grown up five blocks from where Elissa was kidnapped and had attended the school near Elissa’s bus stop. In the early 19805, Link lived in a house less than a mile away from the Black Bridge recreation area, the place where Elissa’s body was found. At the time Link was arrested, he was living in South St. Louis, about 1 1/2 miles from where Elissa was kidnapped.
Officers also discovered that Link was registered at a motel just outside of St. Louis from January 9, 1991 to January 11, 1991. Link checked out at an unknown time on January 11, the morning that Elissa was kidnapped. That night, at about 1:55 a.m. on January 12, Link checked into a motel in Des Loge, Missouri, which is about seventy miles north of Black Bridge on a direct route from Black Bridge to St. Louis. A witness noted that Link’s car was loud, “like a car that had a bad muffler on it.” At about 8:30 a.m., Link called the S & S Muffler shop and “was very insistent” that he get his car fixed that day. He was told to bring in the car that afternoon and did so at 2:30 p.m. He explained to the employees that he was coming from further south and that he had to get his muffler fixed or else he would get a ticket in St. Louis. While he was at the shop, he kept pacing in the waiting room and checking to see if the work on his car was finished.
While a mechanic was working underneath Link’s car, clumps of orange clay of the same type found in the St. Francis riverbed fell from the bottom of the car. The tailpipe was bent and broken loose from the muffler, and the muffler had been hit by something that smashed and punctured it. The muffler of Link’s car had twelve inches of clearance, which was also the height of the rock that had been moved out of place at Black Bridge, where Elissa’s body was found.
As part of the investigation, a special agent at the FB! crime laboratory compared three fibers found on the front passenger seat of Link’s car with fibers from the sweater Elissa had been wearing when she was kidnapped. The agent determined that the fibers found in Link’s car were “consistent with having come from the victim’s sweater.”
DNA tests conducted by two different labs showed that Link’s DNA matched the DNA found in sperm cells on vaginal swabs taken from Elissa’s body. The state’s DNA expert set the odds of such a match at one in 6,600. The testing also revealed that Elissa’s DNA matched the DNA in the blood found in the petroleum jelly jar seized from Link’s car. The odds of that match were one in 48. The joint probability of both of these matches occurring by chance was less than one in 300,000.
Link did not testify at trial, but he called two witnesses who had reported seeing Elissa after 6:30 a.m. on January 11, 1991. He also called a detective who had worked with one of these witnesses to make a composite drawing of a man she allegedly saw with Elissa, but who did not resemble Link. He also called two witnesses who worked as buyers in the clothing industry to testify to the large number of cotton/ramie sweaters, like the one Elissa wore, that were imported every year. He called two DNA experts to testify that the DNA tests performed by the other two laboratories were faulty. In addition, one of the DNA experts and a third expert testified that the state’s conclusions about the probabilities of Link’s DNA being found in the sperm on the vaginal swab and Elissa’s DNA being found in the blood in the petroleum jelly jar were incorrect. Finally, Link called an accident reconstructionist who testified that the boulder at Black Bridge could not have damaged the muffler on Link’s car.
In rebuttal, the state presented its own accident reconstruction evidence. Investigating officers testified that they obtained a car of the same year and model, with the same kind of tires, bumper arrangement, and exhaust system as Link’s car. They backed the car up to the boulder that had been moved out of place at Black Bridge, whereupon the tailpipe and muffler made contact with the boulder, thus showing that the boulder could have caused the damage to Link’s car.
At the close of the evidence, instructions, and arguments, the jury found Link guilty of kidnapping, forcible rape, and murder in the first degree.
—
Martin Link was born April 17, 1963 (unverified), in St. Louis, MO.
On October 13, 1995, Link was sentenced in St. Louis City to death for the crime of Murder in the First Degree. He was originally ordered to the custody of the Missouri Department of Corrections on November 23, 1993, for crimes committed prior to this sentencing structure. He has remained in DOC custody since that date.
Legal Chronology:
1991
1995
October 13: The St. Louis City Circuit Court sentences Link to death and to a totaì of life plus 15 years.
1996
1999
2000
2001
2004
2006
2007
2008
2011
Death Row: Capital Punishment in Missouri State of Missouri v. Martin Link
Case Facts: On Friday, January 11, 1991, just before 6:30 a.m., eleven-year-old Elissa Self left her house at 3844 Humphrey Street in South St. Louis to walk less than three blocks to catch her bus to Enright Classical Junior Academy, a school for gifted children. It was a cold, rainy morning, and Elissa's mother insisted that she wear boots and carry an umbrella. Elissa never arrived at school, and at about 8:20 a.m. the school called Elissa's parents to tell them that Elissa was not present. Elissa's parents drove around the neighborhood looking for her, but they were unable to find her, and they went home and called the police.
During the next four days, police canvassed the neighborhood, interviewed possible witnesses, and investigated calls and letters on possible sightings. On Tuesday, January 15, 1991, two persons who were scavenging at the Black Bridge recreation area along the St. Francis River, 135 miles south of St. Louis in Wayne County, found Elissa's body in a large pile of debris that had washed up on the riverbank. Police soon searched the area and found Elissa's boots, but none of her other belongings.
At about 9:24 p.m., on January 26, 1991, eleven days after Elissa's body was found, a City of Kirkwood police officer saw Martin Link driving with a headlight out and attempted to pull him over. Link led the officer on a high-speed chase, eventually crashing his car into a telephone pole, and was then taken into custody. In a search of the car, officers found a jar of petroleum jelly with Link's fingerprints on the jar and flecks of blood embedded in the jelly.
DNA tests conducted by two different labs showed that Link's DNA matched the DNA found in sperm cells on vaginal swabs taken from Elissa's body. The state's DNA expert set the odds of such a match at one in 6,600. The testing also revealed that Elissa's DNA matched the DNA in the blood found in the petroleum jelly jar seized from Link's car. The odds of that match were one in 48. The joint probability of both of these matches occurring by chance was less than one in 300,000.
Link did not testify at trial, but he called two witnesses who had reported seeing Elissa after 6:30 a.m. on January 11, 1991. He also called a detective who had worked with one of these witnesses to make a composite drawing of a man she allegedly saw with Elissa, but who did not resemble Link. He also called two witnesses who worked as buyers in the clothing industry to testify to the large number of cotton/ramie sweaters, like the one Elissa wore, that were imported every year. He called two DNA experts to testify that the DNA tests performed by the other two laboratories were faulty. In addition, one of the DNA experts and a third expert testified that the state's conclusions about the probabilities of Link's DNA being found in the sperm on the vaginal swab and Elissa's DNA being found in the blood in the petroleum jelly jar were incorrect.
At the close of the evidence, instructions, and arguments, the jury found Link guilty of kidnapping, forcible rape, and murder in the first degree.
"Execution vigil evokes memories of long case, girl's short life," by Bill McClellan. (February 11, 2011)
A small cluster of high-schoolers from St. Louis stood in the snow and the cold outside the state prison in Bonne Terre Tuesday night and listened to a young priest.
"We live in a throw-away society," he said, "but we do not believe in throwing anybody away."
Martin Link was scheduled to die by lethal injection shortly after midnight Wednesday morning.
The kids prayed for Link, and they prayed for the family of his victim, and they prayed for the people inside the prison who would soon carry out the execution.
As the kids conducted their "Vigil for Life," a car cruised past on Highway K. It stopped near the driveway leading to the prison just long enough for Carl Kabat to hop out. He is a 77-year-old priest with a long history of civil disobedience. He once did almost 10 years in prison for attacking a missile silo with a jackhammer.
Kabat wore a sandwich sign made of cardboard. "Thou Shalt Not Kill," was the message hanging down his chest. "Stop the Murder," was the message on his back.
He approached the guards. They pointed toward the official protest area, which is where the kids were conducting their vigil. "I'm not going there," Kabat said. The guards detained him and called the state police. Within a few minutes, Kabat was on his way to the St. Francois County jail in Farmington.
By 9 p.m., Kabat was gone, the kids had left and the area around the prison was quiet. The witnesses for the execution arrived at 10:30. There are three groups of witnesses. They are kept segregated. There are witnesses for the state, the victim and the condemned.
I was one of the state's witnesses.
On a January morning in 1991, 11-year-old Elissa Self-Braun left her home in south St. Louis and headed toward her school bus stop. Her umbrella was found in an alley she used as a shortcut. Four days after her disappearance, her body was found on the banks of the St. Francis River in Wayne County.
Bill Roach and Mike Flaherty were the detectives from the juvenile division who had been handed the missing-child case. They drove to Wayne County. Elissa's body had been removed from the river and taken to a funeral home. She was lying on a table, still caked with mud. Roach ran his hand through her hair. "We never stopped looking for you, honey, and we'll never stop looking for the guy who did this."
Because there was a question of jurisdiction — where was she killed? — the homicide division did not take the case, and Roach and Flaherty received permission to continue their investigation. Eventually, they arrested Link.
Joe Warzycki was the lead prosecutor when the case went to trial in 1995. He was assisted by Jeff Hilliard.
Roach, Flaherty and Warzycki also served as state's witnesses at Link's execution. Hilliard died from ALS in January 2004.
The state's witnesses were taken to the office in the prison that is used for parole hearings.
At 11:50 p.m., we were led toward the execution chamber. We walked past the "strip room," where inmates change clothes and are searched after visits. We walked past the empty visiting area.
We were led into a small room. There were two rows of chairs facing a blue curtain. I sat next to Roach. He mused about the fact that had Elissa left the house two minutes earlier or two minutes later on that long-ago morning, none of us would be here. He said that once, when he was a young cop, he was at Fairground Park at 3 a.m. He saw headlights coming down Grand Avenue. Then headlights coming down Natural Bridge Avenue. They were the only two cars on the street and they were racing at each other like meteors. They collided. Sometimes that happens.
Two corrections officials opened the curtains. Link was lying on a gurney. He was wearing glasses, but his eyes were closed. He looked serene. He was covered with a white sheet. His breathing was shallow. I could see two leather straps, one for his wrists and the other for his legs. Tubing for an IV came from a wall and snaked up under the sheet.
Directly across from us was his family's viewing area. The curtains were closed. To our right, but out of our sight, was the viewing room for Elissa's witnesses.
Three drugs are used in the execution. The first renders the condemned unconscious. When it was administered, Link coughed. He did not appear to be in distress.
The second drug stops the respiratory process. The final drug stops the heart. I could see no discernible change in Link when the last two drugs were administered.
A corrections official announced that Link's heart had stopped, and he had been pronounced dead.
"The execution of Martin Link is complete," the official said. The curtains closed.
Afterward, Flaherty, Roach, Warzycki and I went out for coffee with Elissa's family. I sat next to her mom. She did not talk about the execution or Link. Instead, she talked about family. Which still includes, of course, the 11-year-old who left for school one morning and never came home.
"Missouri executes man for rape and murder of girl," by Bruce Olson. (Wed Feb 9, 2011 9:11am EST)
ST. LOUIS (Reuters) - Missouri executed by lethal injection a 47-year-old man early on Wednesday for the 1991 murder, rape and kidnapping of an 11-year-old St. Louis girl.
The execution of Martin Link, the first in Missouri in nearly two years, was carried out at 12:15 a.m. local time Wednesday at the state prison in Bonne Terre after last-minute appeals failed, Department of Corrections spokesman Chris Cline said.
Gov. Jay Nixon earlier on Tuesday denied a clemency petition, and appeals before Missouri and U.S. federal courts also failed.
Nixon said nothing had changed since Link was convicted of killing Elissa Self-Braun, who disappeared walking to her school bus stop. Her body was found four days later floating in the St. Francis River, about 135 miles from her home.
The execution used sodium thiopental, a drug no longer made by Hospira, Inc., the only U.S. company that manufactured the drug. The company said recently that it will no longer make the drug because it does not want it to be used in executions.
Missouri's last execution was in 2009, and another man, Richard Clay, was scheduled to die earlier this year. His sentence was commuted to life in prison at the last minute by Nixon.
The execution of Link was the fifth this year in the United States. There were 46 executions in the U.S. during 2010, down 12 percent from 2009. Since 1989, Missouri has executed 67 men.
"Missouri executes man for girl’s rape, murder." (Associated Press Thu, Feb. 10, 2011)
BONNE TERRE, Mo. | Forty-seven men remain on Missouri’s death row after Martin Link’s execution early Wednesday for killing and raping an 11-year-old St. Louis girl.
It was the first execution in the state in nearly two years.
Link, 47, died two decades after his victim, Elissa Self-Braun, was killed. He coughed four times as the anesthetic sodium thiopental was administered. He never opened his eyes or moved as the next two drugs killed him.
He never showed remorse. He used his final words to criticize the death penalty.
His crime stunned St. Louis.
Elissa, a bright girl with a big smile, left home about 6:30 a.m. on Jan. 11, 1991, heading three blocks to catch her bus to Enright Classical Junior Academy, a school for gifted children. She never made it to the bus.
Four days later, two people scavenging along the St. Francis River 135 miles south of St. Louis found Elissa’s body in debris that had washed up on the riverbank. Investigators eventually tied Link to the crime through DNA evidence.
No more executions have been scheduled in Missouri, which is affected by a nationwide shortage of sodium thiopental.
"Missouri executes St. Louis girl's killer," by Jim Salter. (February 9, 2011)
BONNE TERRE — A Missouri man convicted of kidnapping, raping and killing an 11-year-old girl whose body was dumped along a river was put to death early Wednesday, the first execution in the state in nearly two years.
Martin Link, 47, died by injection at 12:15 a.m. Wednesday at the state prison in Bonne Terre. His fate was sealed when Gov. Jay Nixon denied a clemency request on Monday and several appeals failed to persuade the courts to intervene.
Death row inmates from Boone County
* Ernest Lee Johnson has been on death row since 1995. He was convicted of the 1994 killings of Fred Jones, Mary Bratcher and Mable Scruggs, employees at a Casey's General Store on Ballenger Lane in Columbia. He has appealed his sentence to the Missouri Supreme Court, based on evidence that he is mentally disabled and therefore not eligible for the death penalty. A decision is pending.
* Earl Ringo Jr. has been on death row since 1999. He was convicted in the 1998 murders of JoAnna Baysinger, manager of the Ruby Tuesday on Stadium Boulevard, and Dennis Poyser, a food delivery man. He has challenged his sentence based on his claim that the federal law requires a doctor to prescribe or administer the sodium thiopental used in an execution.
Convicts executed for Boone County crimes
*¦Gary Lee Roll, executed Aug. 3, 2000
Later that month, police in suburban St. Louis saw a car with a headlight out and tried to pull it over. Link was the driver. He sped away and crashed.
Inside the car, officers found petroleum jelly with flecks of blood. Meanwhile, investigators took DNA evidence from Elissa's body. Link's DNA matched that DNA; the girl's DNA matched the DNA in the blood found in the petroleum jelly jar.
Executions in Missouri and elsewhere were on hold for years as the courts decided whether lethal injection could violate the inmate's constitutional guarantee against cruel and unusual punishment. A U.S. Supreme Court ruling in June cleared the way for executions to resume.
Prison officials in many of the 35 states with the death penalty are struggling with a shortage of one of the three drugs used in executions, sodium thiopental, which is an anesthetic that renders the condemned inmate unconscious before the other drugs kill him.
Missouri Department of Corrections spokesman Chris Cline said Missouri had about 40 units of sodium thiopental in stock before Link's execution, and it takes about 10 units for each execution. Missouri's supply of sodium thiopental expires March 1. The state has no further executions scheduled before then.
Link's execution comes about a month after Nixon stepped in to spare the life of another condemned man, Richard Clay, who was convicted in a southeast Missouri murder-for-hire plot. Days before Clay was scheduled to die, Nixon commuted his sentence to life in prison without parole, but refused to say why — though he said he remained convinced that Clay was guilty.
Since 2005, Missouri's executions have taken place at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre, which is 30 miles east of the Potosi Correctional Center, where death row inmates are housed.
Missourians to Abolish the Death Penalty
Missourians for Alternatiuves to the Death Penalty
State v. Link, 25 S.W.3d 136 (Mo. 20000) (Direct Appeal).
Defendant was convicted in Circuit Court, City of St. Louis, Evelyn M. Baker, J., of kidnapping, forcible rape, and murder in the first degree and sentenced to death. Defendant appealed. The Supreme Court, Limbaugh, J., held that: (1) error in admission of officer opinion testimony that witness's sighting of murder victim was false was not shown to have prejudiced defendant; (2) expert's statistical probability testimony based on joint probability calculations was admissible; (3) officer's testimony that five suspects were eliminated in case did not invade province of jury; (4) prejudice from admission of officer's testimony concerning statement of sister of victim was negligible; (5) testimony of medical personnel, who handled box with vaginal swabs, showed unbroken chain of custody; (6) prosecutor's comment for jurors to “raise that window and say we're mad as hell and we are not going to take it,” did not constitute manifest injustice; and (7) counsel was not ineffective in penalty phase for failing to present expert testimony on abuse that murder defendant suffered as child. Affirmed.
STEPHEN N. LIMBAUGH, Jr., Judge.
Martin Link was convicted by a jury in the Circuit Court of the City of St. Louis of kidnapping, section 565.110, RSMo 1986, forcible rape, section 566.030, RSMo Supp.1990, and murder in the first degree, section 565.020, RSMo Supp. 1990, and the trial court, following the jury's recommendation, sentenced Link to death. The post-conviction court overruled his Rule 29.15 motion after an evidentiary hearing. Because the death penalty was imposed, this Court has exclusive jurisdiction of the appeals. mo. Const. art. V, sec. 3; Order of June 16, 1988. The judgments are affirmed.
I. FACTS
The facts, which this Court reviews in the light most favorable to the verdict, State v. Ferguson, 20 S.W.3d 485, 491 (Mo. banc 2000), are as follows:
On Friday, January 11, 1991, just before 6:30 a.m., eleven-year-old Elissa Self left her house at 3844 Humphrey Street in South St. Louis to walk less than three blocks to catch her bus to Enright Classical Junior Academy, a school for gifted children. It was a cold, rainy morning, and Elissa's mother insisted that she wear boots and carry an umbrella. Elissa never arrived at school, and at about 8:20 a.m. the school called Elissa's parents to tell them that Elissa was not present. Elissa's parents drove around the neighborhood looking for her, but they were unable to find her, and they went home and called the police.
During the next four days, police canvassed the neighborhood, interviewed possible witnesses, and investigated calls and letters on possible sightings. On Tuesday, January 15, 1991, two persons who were scavenging at the Black Bridge recreation area along the St. Francis River, 135 miles south of St. Louis in Wayne County, found Elissa's body in a large pile of debris that had washed up on the riverbank. Police soon searched the area and found Elissa's boots, but none of her other belongings. One of the small boulders that defined the perimeter of the parking area had been pushed out of place, and there was a tire rut in the gravel leading up to that boulder.
Elissa's body was autopsied twice. The autopsies revealed two fresh oval-shaped bruises on Elissa's upper left arm, which were consistent with someone grabbing her arm tightly. Her lips were bruised and torn on the inside from being pressed against her teeth. The autopsies also showed that she had been raped. Her external genitalia were bruised and swollen, and there was a five-millimeter tear in the area leading to her vagina. Her hymen had been torn as well. Inflammation had begun in her vagina, and blood in her panties had partially dried, indicating that she survived for some time after the rape.
The cause of death was ligature strangulation. There were two long, thin bruises, about five to seven millimeters wide, around her entire neck. These bruises were consistent with a cord having been wrapped completely around her neck, with each end of the cord held in front of her. A pathologist testified that Elissa had been strangled to death slowly, losing consciousness after about five to ten minutes and dying after about thirty minutes. Although she still may have been alive when her body was dumped in the river, the amount of brain damage she sustained from the strangulation indicated that she never would have regained consciousness. Because the cold water had preserved her body, the time of death could be established only during the interval between the time of her kidnapping to twenty-four hours before she was found.
At about 9:24 p.m., on January 26, 1991, eleven days after Elissa's body was found, a City of Kirkwood police officer saw Martin Link driving with a headlight out and attempted to pull him over. Link led the officer on a high-speed chase, eventually crashing his car into a telephone pole, and was then taken into custody. In a search of the car, officers found a jar of petroleum jelly with Link's fingerprints on the jar and flecks of blood embedded in the jelly. In addition, officers took tape lifts from the inside of the car in order to obtain fiber evidence.
During the investigation, officers discovered that Link had grown up five blocks from where Elissa was kidnapped and had attended the school near Elissa's bus stop. In the early 1980s, Link lived in a house less than a mile away from the Black Bridge recreation area, the place where Elissa's body was found. At the time Link was arrested, he was living in South St. Louis, about 1 1/2 miles from where Elissa was kidnapped.
Officers also discovered that Link was registered at a motel just outside of St. Louis from January 9, 1991 to January 11, 1991. Link checked out at an unknown time on January 11, the morning that Elissa was kidnapped. That night, at about 1:55 a.m. on January 12, Link checked into a motel in Desloge, Missouri, which is about seventy miles north of Black Bridge on a direct route from Black Bridge to St. Louis. A witness noted that Link's car was loud, “like a car that had a bad muffler on it.” At about 8:30 a.m., Link called the S & S Muffler shop and “was very insistent” that he get his car fixed that day. He was told to bring in the car that afternoon and did so at 2:30 p.m. He explained to the employees that he was coming from further south and that he had to get his muffler fixed or else he would get a ticket in St. Louis. While he was at the shop, he kept pacing in the waiting room and checking to see if the work on his car was finished.
While a mechanic was working underneath Link's car, clumps of orange clay of the same type found in the St. Francis riverbed fell from the bottom of the car. The tailpipe was bent and broken loose from the muffler, and the muffler had been hit by something that smashed and punctured it. The muffler of Link's car had twelve inches of clearance, which was also the height of the rock that had been moved out of place at Black Bridge, where Elissa's body was found.
As part of the investigation, a special agent at the FBI crime laboratory compared three fibers found on the front passenger seat of Link's car with fibers from the sweater Elissa had been wearing when she was kidnapped. The agent determined that the fibers found in Link's car were “consistent with having come from the victim's sweater.”
DNA tests conducted by two different labs showed that Link's DNA matched the DNA found in sperm cells on vaginal swabs taken from Elissa's body. The state's DNA expert set the odds of such a match at one in 6,600. The testing also revealed that Elissa's DNA matched the DNA in the blood found in the petroleum jelly jar seized from Link's car. The odds of that match were one in 48. The joint probability of both of these matches occurring by chance was less than one in 300,000.
Link did not testify at trial, but he called two witnesses who had reported seeing Elissa after 6:30 a.m. on January 11, 1991. He also called a detective who had worked with one of these witnesses to make a composite drawing of a man she allegedly saw with Elissa, but who did not resemble Link. He also called two witnesses who worked as buyers in the clothing industry to testify to the large number of cotton/ramie sweaters, like the one Elissa wore, that were imported every year. He called two DNA experts to testify that the DNA tests performed by the other two laboratories were faulty. In addition, one of the DNA experts and a third expert testified that the state's conclusions about the probabilities of Link's DNA being found in the sperm on the vaginal swab and Elissa's DNA being found in the blood in the petroleum jelly jar were incorrect. Finally, Link called an accident reconstructionist who testified that the boulder at Black Bridge could not have damaged the muffler on Link's car.
In rebuttal, the state presented its own accident reconstruction evidence. Investigating officers testified that they obtained a car of the same year and model, with the same kind of tires, bumper arrangement, and exhaust system as Link's car. They backed the car up to the boulder that had been moved out of place at Black Bridge, whereupon the tailpipe and muffler made contact with the boulder, thus showing that the boulder could have caused the damage to Link's car.
At the close of the evidence, instructions, and arguments, the jury found Link guilty of kidnapping, forcible rape, and murder in the first degree.
During the penalty phase, the state called Elissa's father, mother, stepfather, stepmother, and older sister to give victim impact testimony. The state also called several witnesses to testify about Link's lengthy criminal history, which included, 1) that on June 1, 1982, at about 7:30 a.m., Link jumped in front of a 13-year-old girl in an alley in St. Louis, held a knife to her throat, pulled her into a garage, attempted to rape her, then forced her to perform oral sex on him; 2) that on March 16, 1983, at about 9:30 p.m., Link kidnapped a 15-year-old girl in South St. Louis, drove her to East St. Louis, raped her, and left her under a bridge (crimes for which he was convicted and sentenced to twenty years of imprisonment, but was paroled in 1989); 3) that on November 27, 1989, Link solicited an undercover police officer in St. Louis for prostitution; 4) that on December 12, 1990, Link stole the car that was used to kidnap Elissa; 5) that on January 23, 1991, Link stole a purse from a 71-year-old woman in South St. Louis, and later that day, he attempted to cash one of her checks; 6) that later on January 23, 1991, Link walked into a laundromat, raped a woman at knife-point and then kidnapped her, although she escaped by jumping, half-naked, from his car when he stopped at a stop sign; 7) that on January 25, 1991, at about 10:30 a.m., in Cuba, Missouri, Link broke into a home, ordered a woman in the home to put her baby down, robbed her at knife-point, raped her twice, and held a pillow over her face until he was startled by a noise, and then quickly left after cutting the phone cord; 8) that at about 6:30 p.m. on that same evening, Link attempted to grab an eight-year-old girl in an alley, but she ran into her house; and 9) that, again on the same evening, Link walked into a Baskin-Robbins, held a knife to a 16-year-old female employee and demanded money, but fled when she sounded the buzzer on the cash register.
At the beginning of Link's penalty phase evidence, his counsel read to the jury a stipulation regarding his incarceration records. The stipulation stated that Link's conduct in jail was always good except for one incident in which he stole some fish, that he had successfully participated in a drug rehabilitation program, that he participated in other rehabilitation programs, and that he had successfully completed a GED program. He also called an investigator who testified that Link was ostracized by his own family, including his daughter, that his stepfather rarely had contact with Link because he worked the night shift, and that little information was known about Link's family tree.
At the close of penalty phase evidence, instructions, and arguments, the jury found the existence of two aggravating circumstances: 1) that the murder involved depravity of mind and as a result was outrageously vile, horrible, and inhuman, in that Link murdered Elissa after she was rendered helpless; and 2) that he murdered Elissa while engaged in the perpetration of rape and kidnapping. The jury recommended that Link receive the death sentence for murder in the first degree, and the trial court sentenced him accordingly. The trial court also sentenced Link to consecutive sentences of fifteen years imprisonment for kidnapping and life imprisonment for forcible rape.
Link filed an amended motion for post-conviction relief on March 27, 1997. The motion court held an evidentiary hearing on November 9 and 10, 1998, and allowed Link to present additional evidence by way of depositions. On July 2, 1999, the motion court entered findings of fact and conclusions of law, overruling Link's motion for post-conviction relief. This consolidated appeal follows.
II. ALLEGATIONS OF TRIAL COURT ERROR
Link first claims that the trial court abused its discretion in allowing Officers Gary Maher and Michael Flaherty to testify that defense witness Caroline Burke's reported sighting of Elissa the morning of the kidnapping was a “false sighting.” This testimony, Link explains, was “nothing more than opinions by the witnesses that Burke was not a credible witness,” and, as such, the testimony “invaded the province of the jury.”
Preliminarily, the parties contest whether this point was preserved for review. The transcript reflects that the prosecutor asked Officer Maher: “With regard to your conversations with Carol Burke, did you determine whether that was a valid or false sighting?” When the witness responded, “It was a false sighting,” defense counsel immediately objected “to the opinion of this officer.” Although the state contends that the objection was untimely because the witness had already answered the question, defense counsel had no reason to object before the answer was given. The witness was not asked to give his opinion, but only whether he had an opinion, and an objection at that point would have been premature. Though counsel could have moved for the answer to be stricken as unresponsive, the objection actually made was equally proper and was not untimely.
On the other hand, the objection made to the false sightings testimony of Officer Flaherty was insufficient. Defense counsel stated only that “I would renew my objection,” without specifying what objection was being renewed. In fact, the objection previous to the “renewal” - the objection to which the renewal logically referred - was an objection to hearsay, not an objection to improper opinion testimony. Accordingly, Officer Flaherty's testimony is reviewable only for plain error upon a showing of manifest injustice under Rule 30.20.
On the merits of that part of Link's claim pertaining to the testimony of Officer Maher, the general rule is that expert testimony is inadmissible if it relates to the credibility of witnesses because it invades the province of the jury. State v. Middleton, 998 S.W.2d 520, 527 (Mo. banc 1999), cert. denied, 528 U.S. 1167, 120 S.Ct. 1189, 145 L.Ed.2d 1094 (2000). However, it is proper for a witness to testify to specific facts that discredit the testimony of another witness, as long as the witness does not comment directly on the truthfulness of another witness. Stone v. City of Columbia, 885 S.W.2d 744, 747-48 (Mo.App.1994). In the present case, it did not invade the province of the jury for Officer Maher to explain the general concept of false sightings. See State v. Skillicorn, 944 S.W.2d 877, 892 (Mo. banc 1997), cert. denied, 522 U.S. 999, 118 S.Ct. 568, 139 L.Ed.2d 407 (1997) (permissible for FBI agent to explain generic concept that defendants minimize involvement in crime). Nor was it improper for him to state specific facts that tended to discredit Ms. Burke's sighting. See Stone, 885 S.W.2d at 747-48. But it was improper for him to go one step further and say that the police classified the information from Ms. Burke as a false sighting.
Despite this error in the admission of Officer Maher's testimony, Link has not shown that he was prejudiced, much less that he suffered manifest injustice due to the admission of Officer Flaherty's testimony. Indeed, the officers' testimony was not as damaging as the testimony of Ms. Burke herself. Although at one point Ms. Burke testified that she was positive she saw Elissa, she said seven times during direct examination that she was not sure that she saw Elissa. She said that as she was driving around the day of the sighting, she saw two different girls at two different locations at almost the same time, but she was not sure which of them she thought was Elissa. She said that on the day of the sighting she told her sister, “I'm not sure, but it looks like Elissa.” She said that she did not call Elissa's mother that day because she was not sure it was Elissa; that even after she found out that Elissa was missing, she waited two days to report the sighting to police; that she did not tell Elissa's parents about it when she was with them the day after the sighting; that the reason she did not tell anyone was because at that time she was not sure it was Elissa; and that she only reported the sighting when, after mentioning it to someone at her church, that person took her to a third person who then called the police. Ms. Burke also testified that the day she made the sighting it was “raining and icing,” and that she only glanced at the girls as she drove by them and looked at them in her rear-view mirror. Given the weakness of Ms. Burke's testimony, the impropriety of the officers' false sightings testimony was negligible and certainly not prejudicial. The point is denied.
B. Dr. Moses Schanfield's Testimony
Link next claims that the trial court erred in allowing one of the state's DNA experts, Dr. Moses Schanfield, to testify that the report of defense expert Dr. Randell Libby showed that Libby had “no knowledge” of how to interpret mixed stains. This testimony, Link contends, was a direct comment on Dr. Libby's credibility that invaded the province of the jury. As noted, direct comments relating to the truthfulness or credibility of a witness are generally inadmissible. However, an expert witness may testify that he disagrees with the scientific conclusions reached by another expert witness. State v. Love, 963 S.W.2d 236, 245 (Mo.App.1997); Stone v. City of Columbia, 885 S.W.2d 744, 747 (Mo.App.1994).
Although it is a close question, Dr. Schanfield's “no knowledge” remark was an impermissible comment on Dr. Libby's credibility. However, in the context of Dr. Schanfield's entire testimony, the prejudice to Link was negligible. The record shows that Dr. Schanfield gave a detailed scientific explanation of his disagreement with Dr. Libby's report, that he was harshly critical of the report, and that he stated the report contained “impossible conclusions.” The “no knowledge” remark was made at the end of Dr. Schanfield's rather devastating testimony and could hardly have caused more damage to Link than what had been said before. Absent prejudice, the error in admitting the “no knowledge” remark did not rise to the level of reversible error. The point is denied.
C. Dr. Martin Tracey's Testimony
Link claims that the trial court abused its discretion in overruling his objection to testimony regarding statistical probabilities elicited from Dr. Martin Tracey, another of the state's DNA experts. Dr. Tracey testified that if two people were picked at random, the odds are less than one in 300,000 that 1) the DNA profile of the first person would match the DNA profile of the blood found in the jar of petroleum jelly and 2) the DNA profile of the second person would match the DNA profile of the sperm found on the vaginal swabs. Link argues that this testimony did not meet the standard required by Frye v. United States, 293 F. 1013 (D.C.Cir.1923), because the method that Dr. Tracey used to arrive at those numbers is not generally accepted in the scientific community.
Dr. Tracey arrived at this figure by using the “product rule,” which provides, that if two events are independent of each other, the probabilities of each event occurring can be multiplied, and the resulting product is the probability of both events occurring. In the present case, Dr. Tracey multiplied the odds that someone at random would match the DNA profile of the blood found in the petroleum jelly - one in 48 - by the odds that someone at random would match the DNA profile of the semen found on the vaginal swabs -one in 6,600 - to arrive at the probability of both the profiles matching two individuals picked at random. This Court has held that “the product rule is generally accepted in the scientific community, and that population frequency statistics based on the product rule are admissible.” State v. Kinder, 942 S.W.2d 313, 327 (Mo. banc 1996), cert. denied, 522 U.S. 854, 118 S.Ct. 149, 139 L.Ed.2d 95 (1997). Link claims, however, that this holding only allows experts to use the product rule to testify about the probability that one sample will match that of someone picked randomly, and it does not allow the expert to testify about the joint probability of two separate samples matching two separate individuals picked at random. Although it is correct that this Court's previous holding did not specifically address joint probability, this Court recognizes that the product rule is simply a mathematical principle that applies equally well for joint probability calculations. Dr. Tracey's testimony, which was based on the product rule, was therefore admissible.
D. Officer William Roach's Testimony
Link claims that the trial court erred in admitting Officer William Roach's testimony that there were five suspects, other than Link, who were eliminated in the case. Link argues that this testimony was improper because its “clear import” was that Officer Roach believed Link was guilty, and therefore, like earlier testimony complained of, invaded the province of the jury. Because Link failed to object to the testimony in question, he is only entitled to relief under the plain error/manifest injustice standard. Rule 30.20.
Even if this claim had been properly preserved, the trial court did not err in admitting this testimony. It is improper for a witness to directly comment that he thinks that the defendant is innocent or guilty. See State v. Cason, 596 S.W.2d 436, 440 (Mo.1980), cert. denied, 449 U.S. 982, 101 S.Ct. 397, 66 L.Ed.2d 243 (1980); State v. Linzia, 412 S.W.2d 116, 120 (Mo.1967). In the present case, Officer Roach did not testify that he believed Link was guilty, and, instead, merely stated that there were other suspects who had been eliminated. This testimony does not invade the province of the jury, and the trial court did not err in this regard.
Link further complains that Officer Roach's testimony about his reasons for eliminating the suspects - that the suspects had alibis that were supported by other witnesses - constituted improper hearsay testimony. Link did not object on hearsay grounds at trial, and again, his claim is reviewable only under the plain error/manifest injustice standard. Assuming that the testimony was hearsay, the evidence of Link's guilt, and especially the DNA evidence, was overwhelming, and the admission of the testimony did not amount to manifest injustice.
On another matter relating to Officer Roach's testimony, Link contends that the trial court erred in allowing the officer to testify that Elissa's sister told him that she found Elissa's umbrella in the alley near her home on the morning Elissa was abducted. Link argues that this testimony was inadmissible hearsay and that it violated his constitutional right to confront witnesses against him. Unlike the other claims, this claim was properly preserved for review.
Although the testimony was clearly hearsay, and admission of the testimony was error, the error was not so prejudicial as to require reversal. The underlying rationale for the hearsay rule is for the purpose of securing the trustworthiness of the assertions. State v. Harris, 620 S.W.2d 349, 355 (Mo. banc 1981). Courts generally exclude hearsay because the out-of-court statement is not subject to cross-examination, is not offered under oath, and the fact-finder is not able to judge the declarant's demeanor and credibility as a witness. Bynote v. National Super Markets, Inc., 891 S.W.2d 117, 120 (Mo. banc 1995). However, to the extent that a declarant “is available for live testimony, under oath, the ‘dangers of hearsay are largely non-existent.’ ” State v. Schaal, 806 S.W.2d 659, 664 (Mo. banc 1991), cert. denied, 502 U.S. 1075, 112 S.Ct. 976, 117 L.Ed.2d 140 (1992).
In this case, Elissa's sister was available to testify during the guilt phase of the trial, and, in fact, she did testify during penalty phase, telling the jury firsthand that she found Elissa's umbrella in the alley at about 7:30 a.m. on January 11, 1991. These are indeed the kinds of circumstances in which the dangers of hearsay are largely non-existent. For that reason, and considering the overwhelming evidence of Link's guilt, the prejudice was negligible. The point is denied.
E. Chain of Custody
Link argues that the trial court erred in admitting into evidence state's exhibit 152, a box containing vaginal swabs made during the second autopsy of Elissa's body, because the state did not establish a proper chain of custody. In support, Link cites the testimony of Dr. Michael Graham, the medical examiner who performed the second autopsy and took the vaginal swabs from the body and placed them in the box, who admitted on cross-examination that he did not have any personal knowledge as to how the swabs were handled and stored after he packaged them.
The determination of whether a sufficient chain of custody has been established for the admission of an exhibit is a matter within the sound discretion of the trial court. State v. Nicklasson, 967 S.W.2d 596, 617 (Mo. banc 1998), cert. denied 525 U.S. 1021, 119 S.Ct. 549, 142 L.Ed.2d 457 (1998). In order to admit exhibits and testimony regarding tests performed on those exhibits, the trial court must be satisfied as to the identity of the exhibits and that the exhibits were in the same condition when tested as when the exhibits were originally obtained. State v. Mahan, 971 S.W.2d 307, 317 (Mo. banc 1998); State v. Strughold, 973 S.W.2d 876, 886 (Mo.App.1998). This may be proven by evidence establishing a chain of custody, but proof of a chain of custody does not require proof of hand-to-hand custody of the evidence, nor proof that eliminates all possibility that the evidence has been disturbed. Mahan, 971 S.W.2d at 317. The trial court may assume, absent a showing of bad faith, ill will or proof, that officials having custody of exhibits properly discharged their duties and that no tampering occurred. Id.
In this case, the state's proof of chain of custody was adequate. Dr. Graham testified that he marked and sealed the box in which the vaginal swabs were contained and that he was able to identify the box by marks he put on the box and his handwriting on the box. He further testified that the box was picked up the same day that he took the swabs and was delivered next door to the St. Louis police department laboratory. Dr. Joseph Crow, a criminalist at the laboratory, testified that he received the vaginal swabs, and Harold Messler, chief criminalist of the laboratory, testified that he sent the swabs on to the Serological Research Institute (SERI), a private forensic laboratory. Brian Wraxall, a forensic serologist at SERI, identified exhibit 152 and testified that he received it, but that SERI tested only the vaginal swabs taken from the first autopsy, which were in a different container, and not those taken from the second autopsy. In any event, when SERI completed its testing, both sets of swabs were returned to the police laboratory. Harold Messler received the swabs and sent them to the Analytical Genetic Testing Center (AGTC), another private forensic laboratory. Thomas Wahl from AGTC identified exhibit 152, and testified that he received it from the police laboratory. He also testified that AGTC then performed the DNA tests on the vaginal swabs taken from the second autopsy, but did not repeat the DNA tests performed by SERI on the vaginal swabs taken from the first autopsy. This evidence shows an unbroken chain of custody for the swabs from the second autopsy from the time they were made to the time they were tested. The trial court did not abuse its discretion in admitting exhibit 152. The point is denied.
F. Closing Argument
Link's next claim pertains to the following remarks made by the prosecutor during the rebuttal portion of the prosecutor's guilt phase closing argument:
Now, just a few closing comments that I want to make. There's a movie - I'm going to give you a little story now. It ain't going to take long. There's a movie that came out a few years ago called “Network.” Peter Finch starred in it. And at one point he is so frustrated, he raises the window and screams out his window, “I'm mad as hell and I'm not going to take it anymore.”
That is what I would like to see this jury do in this case. An 11-year-old girl was murdered. A helpless child. And it is time for this community to raise the window and tell predators like him [Indicated.] that it's not going to be tolerated, and you're going to pay the price.
* * *
You represent the people of the City of St. Louis here, and you heard through this evidence a terrible, terrible crime has been committed. And you have heard evidence from many, many sources reflecting the best scientific techniques that we could find showing the best police work that has ever been done in this case, and in this particular city. To find one person, and there he sits. [Indicated.]
And it is time for this jury, for us to raise that window and say we're mad as hell and we are not going to take it. Elissa Self-Braun is the victim here. I'm not asking for you to do this for me. I am not asking you to do this for the Self family. I am not asking you to do this for the Braun family. [Held photograph.] I'm asking you to do this for her.
Thank you.
Link contends that the prosecutor's comments “called upon the jury to find [him] guilty because of emotion and not based upon the evidence.” Because Link's objection at trial was based on other grounds, and he failed to include the claim in his motion for new trial, the claim has not been preserved and is only reviewable under the plain error/manifest injustice standard of Rule 30.20.
Although this Court has often held that it is proper for a prosecutor to argue that the jury should “send a message” to the community that criminal conduct will not be tolerated, see, e.g., State v. Phillips, 940 S.W.2d 512, 520 (Mo. banc 1997); State v. Simmons, 944 S.W.2d 165, 182 (Mo. banc 1997), cert. denied, 522 U.S. 953, 118 S.Ct. 376, 139 L.Ed.2d 293 (1997), it is improper for a prosecutor to argue that the jury should base its decision on emotions, State v. Taylor, 944 S.W.2d 925, 927 (Mo. banc 1997). The prosecutor's argument in this case, though mostly a proper “send a message” argument, goes over the line in calling the jury to “raise that window and say we're mad as hell.” It is similar to the kind of raw emotional comments this Court disallowed in Taylor, comments that included, “Now is the time you can put your emotion into it. Now is the time that you can show your outrage. Now is the time to get mad.” Id. Although the comments in Taylor constituted reversible error, reversal is inappropriate in the present case. In Taylor there was more emphasis on and repetition of the comments, and the comments were not so well set in the context of a send-the-message argument as they were here. Furthermore, the Taylor comments were made during penalty phase rather than in guilt phase, as in this case. The jury in Taylor could not reach a decision on punishment, suggesting a reasonable probability that, without the improper argument, the jury would have imposed only a life sentence. In contrast, the jury in this case heard the prosecutor's comments only during the determination of guilt or innocence, and the guilt phase evidence was overwhelming, as noted. Finally, and most important, the argument in Taylor was preserved for review by a timely objection, but in this case, the argument was made without objection. Under these circumstances the prosecutor's closing argument did not constitute manifest injustice. The point is denied.
III. ALLEGATIONS OF RULE 29.15 MOTION COURT ERRORS
Link claims that the motion court erred in adopting the state's proposed findings of fact and conclusions of law almost verbatim, which shows, he contends, that the motion court failed to thoughtfully and carefully review the proposed findings. In support, Link points to five alleged errors in the 23-page order.
In the absence of independent evidence that the court failed to thoughtfully and carefully consider the claims, “there is no constitutional problem with the court adopting in whole or in part the findings of fact and conclusions of law drafted by one of the parties.” State v. Ferguson, 20 S.W.3d 485, 510 (Mo. banc 2000) (quoting State v. Kenley, 952 S.W.2d 250, 261 (Mo. banc 1997), cert. denied, 522 U.S. 1095, 118 S.Ct. 892, 139 L.Ed.2d 878 (1998)). Moreover, a minor error in the motion court's findings does not establish that the court did not carefully consider the state's proposed findings. State v. Phillips, 940 S.W.2d 512, 521 (Mo. banc 1997).
The five errors that Link identifies in this case are either minor errors or not errors at all, and none of the errors establish that the court failed to thoughtfully and carefully consider the claims. An extended opinion on this point would have no precedential value. The point is denied.
B. Ineffective Assistance of Counsel
Link's final claim is that the motion court clearly erred in finding that counsel was not ineffective in penalty phase for failing to present expert testimony on the abuse he suffered as a child. Link underwent pretrial psychological evaluations by Dr. Pat Fleming, a licensed psychologist, on three occasions. In addition to determining that Link had been physically abused by his mother and first stepfather and that Link had long-standing substance abuse problems, Dr. Fleming reported that:
Mr. Link was hesitant to describe happenings in his life, but briefly stated that he was sexually molested by an older man who lived nearby. Given the nature of his crimes, it is probable that the abuse was not a single episode, but Mr. Link would not provide additional information.
* * *
The results from the evaluation are not felt to be complete nor adequate. It is highly recommended that another examiner, ideally a black male, might be more effective in establishing rapport.
Link now claims that counsel was ineffective for failing to contact Dr. Donald Cross, a black male examiner, with whom Link's counsel was aquainted. Dr. Cross eventually did examine Link, but not until he was requested to do so by post-conviction counsel. Link submitted Cross's 69-page report to the motion court as an exhibit and points out that the report contains additional and more detailed information regarding the alleged physical and sexual abuse that he suffered than that in Dr. Fleming's report. Dr. Cross stated that he thought that Link was abused as a child, but he did not offer that opinion within a reasonable degree of scientific certainty.
The standard of review of the motion court's action is limited to a determination of whether the findings and conclusions of the court are clearly erroneous. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). The court's rulings are presumed correct and will be found clearly erroneous only if, upon a review of the entire record, the appellate court is left with a definite and firm impression that a mistake has been made. Id.
In order to prevail on a claim of ineffective assistance of counsel, Link must prove by a preponderance of the evidence that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances, and that he was prejudiced as a result. State v. Clay, 975 S.W.2d 121, 135 (Mo. banc 1998) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To prove that he was prejudiced, Link must show a “reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.” Id. In addition, the decision not to call a witness to testify, as a matter of trial strategy, is “virtually unchallengeable” as a claim of ineffective assistance of counsel. Leisure v. State, 828 S.W.2d 872, 875 (Mo. banc 1992), cert. denied, 506 U.S. 923, 113 S.Ct. 343, 121 L.Ed.2d 259 (1992).
In the present case, just before penalty phase began, the prosecutor, who was concerned that Link might later try to claim that counsel was ineffective for failing to present any psychological experts, asked Link's attorney to make a record as to why he was not calling such experts. Counsel responded:
[A]s an officer of the court and as a counselor at law, I will represent to the court that as an attorney this is my fourteenth death penalty actual trial much less the number of death penalty cases I've handled, and I have used psychological testimony in the past in litigation cases, and at times I haven't. And based on my experience and training and information that's provided to me in this case through a number of different avenues, I have made a conscious choice not to put that on.
Later, counsel stated that he “made a conscious choice not to open the door to any evidence as to [Link's] personality disorders, or mental makeup,” and then asked that the prosecutor be prevented from putting on its psychologist in rebuttal. After the court granted the request, counsel agreed with the prosecutor's characterization of his decision not to put on any psychological experts as one “based on tactics and strategy.”
Link has failed to show that the motion court's findings were clearly erroneous. Counsel testified at the post-conviction hearing that he was aware that testimony of both his experts and the state's experts would show that Link had no mental disease or defect, that he had a fixation on having sex with young girls, that he was anti-social, that he would repeat his criminal behavior, and that he would kill again. Accordingly, counsel's strategy was to keep out as much of Link's life as possible, and then preach a “sermon” against imposing the death penalty on someone they knew so little about. Ultimately, counsel made a conscious decision not to pursue or introduce psychological evidence from any source and that decision was entirely a matter of trial strategy.
Even if it could be said that counsel was ineffective in failing to contact Dr. Cross, Link has not met the prejudice part of the Strickland standard. As noted, if Dr. Cross had testified, the state would have called its own expert, who would have presented devastating testimony about Link's state of mind. Further, Dr. Cross's report contained evidence that Link lied to Dr. Cross and tried to fake his test results, and it verifies other expert opinions that Link is anti-social, aggressive, and a serial rapist. On this record, there is no reasonable probability that the jury would have come to a different result. The point is denied.
IV. PROPORTIONALITY REVIEW
Under section 565.035.3, RSMo 1994, this Court is required to determine:
1) Whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor;
2) Whether a statutory aggravating circumstance and any other circumstances found by the trier of fact were supported by the evidence; and
3) Whether the sentence is excessive or disproportionate to the punishment imposed in similar cases, considering both the crime, the strength of the evidence and the defendant.
From this Court's review of the record, there is no evidence that the sentence of death was imposed under the influence of passion or prejudice or any other arbitrary factors. Further, the evidence amply supports the two statutory aggravators found by the jury: 1) that the murder of the victim was outrageously or wantonly vile, horrible or inhuman, and 2) that the murder was committed while Link was engaged in the perpetration of kidnapping and rape. Finally, the imposition of the death penalty in this case is neither excessive nor disproportionate. In that regard, the strength of the evidence and the circumstances of the crime far outweigh any mitigating factors in Link's favor. In addition, this case is like many others where the death penalty has been imposed against defendants who have murdered victims they had abducted and against whom they had committed sexual offenses. See, e. g., State v. Ferguson, 20 S.W.3d 485 (Mo. banc 2000); State v. Brooks, 960 S.W.2d 479, 502 (Mo. banc 1997), cert. denied, 524 U.S. 957, 118 S.Ct. 2379, 141 L.Ed.2d 746 (1998); State v. Nunley, 923 S.W.2d 911, 926 (Mo. banc 1996), cert. denied, 519 U.S. 1094, 117 S.Ct. 772, 136 L.Ed.2d 717 (1997); State v. Brown, 902 S.W.2d 278 (Mo. banc 1995), cert. denied, 516 U.S. 1031, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995); State v. Gray, 887 S.W.2d 369 (Mo. banc 1994), cert. denied, 514 U.S. 1042, 115 S.Ct. 1414, 131 L.Ed.2d 299 (1995); State v. Lingar, 726 S.W.2d 728, 741-42 (Mo. banc), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987).
CONCLUSION
For the foregoing reasons, the judgments are affirmed. All concur.
Link v. Luebbers, 469 F.3d 1197 (8th Cir. 2006) (Habeas).
Background: Following affirmance on direct appeal of petitioner's convictions for kidnapping, forcible rape, and murder in the first degree, and affirmance of his death sentence, 25 S.W.3d 136, he filed petition for writ of habeas corpus. The United States District Court for the Eastern District of Missouri, Donald J. Stohr, J., denied petition. Petitioner appealed.
Holdings: The Court of Appeals, Wollman, Circuit Judge, held that:
(1) defense counsel's failure to obtain additional psychological testing did not amount to ineffective assistance of counsel;
(2) defense counsel's failure to present mitigating evidence in the form of psychological testimony during the penalty phase did not deprive petitioner of effective assistance of counsel;
(3) appellate counsel's failure to raise certain claims on appeal did not deprive petitioner of effective assistance of appellate counsel; and
(4) claim that counsel representing him in his state postconviction application was deficient was not cognizable on habeas review. Affirmed.
WOLLMAN, Circuit Judge.
Martin Link was found guilty by a jury of kidnapping, raping, and murdering eleven-year-old Elissa Self-Braun and was sentenced to death. He appeals from the district court's FN1 judgment denying his petition for a writ of habeas corpus. We affirm.
FN1. The Honorable Donald J. Stohr, United States District Judge for the Eastern District of Missouri.
I.
Elissa Self-Braun disappeared in St. Louis on the morning of January 11, 1991. On January 15, her body was found in a drift pile near the St. Francis River in Wayne County, Missouri, approximately 130 miles from St. Louis. On January 26, 1991, Link was arrested following a high speed chase, which ended when Link crashed the stolen 1986 Ford Tempo he was driving into a utility pole.
Both of the examiners who performed autopsies on Elissa's body determined that Elissa had been sexually assaulted and strangled, but they were unable to determine conclusively whether Elissa died before her body was placed in the river. One of the examiners testified that the evidence indicated that Elissa had been strangled slowly, remaining conscious for up to five to ten minutes and dying within approximately thirty minutes.
Evidence connecting Link to Elissa's kidnapping, rape, and murder included a jar of petroleum jelly found in the stolen car that Link was driving. The jar bore Link's fingerprints. Genetic testing of blood found within the jar indicated that it was consistent with Elissa's DNA. Sperm found within Elissa's body was determined to match Link's DNA. An expert testified that the probability of both of these genetic samples matching by random chance was less than one in three hundred thousand. Fibers found on the front passenger seat of the car appeared to match the sweater Elissa was wearing when she was kidnapped. Link had grown up in the area where Elissa was kidnapped and had lived near the area where her body was found. Link had checked out of a motel near St. Louis on the morning Elissa disappeared. He checked into a hotel between Wayne County and St. Louis the next day. A witness at that hotel described the car Link was driving as sounding like it had a damaged muffler. Link brought this car into a mechanic's shop that afternoon and insisted that it be repaired quickly. Under the car, the mechanic found several clumps of orange clay similar to the clay found in the St. Francis riverbed near where Elissa's body was found.
In addition, the mechanic noticed that the car's muffler, which had a clearance of approximately twelve inches from the ground, had been punctured by a collision with some object. Officers testified at trial that a twelve-inch-tall rock in the parking area near the St. Francis River appeared to have been recently moved out of place. In response to this evidence, Link called an accident reconstructionist, who testified that the damage to the car could not have been caused by the rock at the crime scene. In rebuttal, the state recalled Detective Michael Flaherty, who had testified in the state's case-in-chief. Detective Flaherty had examined the defense expert's report and had then performed his own reconstruction of the event with a car matching the model that Link was driving at the time of his arrest. Link objected to the admission of this evidence because of the state's failure to disclose the fact of this reconstruction, which was performed by Detective Flaherty prior to his earlier testimony. Link's objection was overruled, and Flaherty was permitted to testify.
Link was represented by a series of different attorneys during the preparation of his defense and his jury trial. Public defenders Kevin Curran and Cathy DiTraglia initially handled Link's case and performed substantial preliminary investigative work. In 1994, the Missouri Public Defender's system appointed Joseph Green and Scott Rosenblum, two private criminal defense attorneys, to take over Link's defense. Rosenblum was replaced by Ramona Martin. Martin handled the penalty phase of Link's defense while Green focused primarily on the guilt phase. Because of financial and caseload concerns, Martin withdrew from Link's defense approximately one month before the trial began and Vanessa Antoniou took her place. Although Antoniou, who had assisted one of the partners in her firm prepare some twenty murder cases during the three years she had been in the practice, had never previously tried a murder case, Green, who had tried approximately twelve capital cases, decided that it would be better if she presented the defense in the penalty phase. Green thought that, as a woman, Antoniou would have more credibility with the jury in light of the fact that Link's offenses had been committed against women. Moreover, Green was concerned that the jury would find him less credible because of his role in the guilt phase. Green supervised Antoniou during the penalty phase and gave her advice and direction.
As part of their investigation of possible defense strategies, Link's attorneys asked Dr. Patricia Fleming to administer a psychological evaluation. Dr. Fleming advised the attorneys that she was unable to establish a rapport with Link and that he did not cooperate with her. She recommended that Link be examined by a black male, who might be better able to establish a rapport with him. Although Green was familiar with Dr. Donald Cross, a local psychological examiner who fit Dr. Fleming's recommendation, he and his co-counsel did not ask Dr. Cross to examine Link prior to the trial.
During the penalty phase, the state presented victim impact testimony from Elissa's father, mother, stepfather, stepmother, and sister. In addition, the state presented extensive evidence of Link's criminal history. The jury heard evidence that in 1982 Link had held a knife to the throat of a thirteen-year-old girl, had attempted to rape her, and then had forced her to perform oral sex on him. In 1983, Link kidnapped and raped a fifteen-year-old girl, leaving her under a bridge. For these crimes, Link was imprisoned until 1989. Later that year, he was arrested for soliciting a police officer for prostitution. On December 12, 1990, Link stole the Ford Tempo that he was driving at the time of his January 26, 1991, arrest. On January 23, 1991, Link stole a purse from a seventy-one-year-old woman and attempted to cash one of the checks found therein. Later that same day, he raped a woman at knife-point and kidnapped her. Two days later, he broke into a woman's home and robbed and raped her, holding a pillow over the woman's face and fleeing when he heard a noise. Later that day, Link attempted to grab an eight-year-old girl, but she fled. On January 26, 1991, the day of his arrest, Link entered an ice cream shop and demanded money from a sixteen-year-old employee, threatening her with a knife and fleeing when she sounded an alarm.
The evidence presented by the defense in the penalty phase consisted of records from various institutions at which Link had been an inmate showing good conduct there and the testimony of an investigator with the state public defender's office recounting her inability to gather much useful information about Link.
During closing arguments, the prosecutor spoke at length about the crime spree that surrounded Elissa's murder, about Link's history of victimizing women and young girls, and about the brutality of this particular crime. In her closing, Antoniou pleaded for mercy, emphasizing the lack of available information about Link. She argued that it was immoral to kill someone whom the jury did not understand and that the jurors would be reduced to Link's level if they voted to kill him out of revenge or hate. Following the jury's recommendation of a sentence of death for Elissa's murder, the trial court sentenced Link to fifteen years on the kidnapping charge, to life on the rape charge, and to death on the murder charge.
After obtaining new counsel, Link filed a motion in state court for post-conviction relief. One of the grounds asserted was an allegation that his trial counsel had been ineffective in investigating Link's childhood and had failed to discover important mitigating evidence that might have persuaded the jury not to impose the death penalty. At the request of post-conviction counsel, Dr. Cross examined Link and issued a sixty-nine-page report that discussed several alleged instances of Link's being physically, sexually, and emotionally abused during his childhood. In addition, the report discussed Link's abuse of alcohol, marijuana, and inhalants dating back to preadolescence. Dr. Cross diagnosed Link as suffering from post-traumatic stress disorder. Link was also examined by Dr. William Logan, Dr. Robert Smith, and psychologist Marie Clark. Their assessments were consonant with Dr. Cross' conclusions.
At the hearing on the post-conviction petition, Green testified that he had no strategic reason not to have Link examined by another examiner, as Dr. Fleming had recommended. Both Green and Antoniou testified that it was Ramona Martin, whom neither side called as a witness at the hearing, who was assigned to handle the mitigation phase.
Following the court's denial of the post-conviction relief petition, Link's direct appeal was consolidated with his post-conviction appeal. The Missouri Supreme Court affirmed his conviction, sentence, and the denial of post-conviction relief. State v. Link, 25 S.W.3d 136 (Mo.2000).
Link filed for federal habeas corpus relief, asserting twelve violations of his federal constitutional rights. Following the district court's denial of the petition, we granted a certificate of appealability on three issues: (1) whether Link received ineffective assistance of counsel because of counsel's failure to investigate and present mitigating evidence, (2) whether Link received ineffective assistance of appellate counsel because of counsel's failure to raise on appeal a claim regarding the trial court's decision to allow evidence on the issue of the testing done on the Ford Tempo, and (3) whether Link received ineffective assistance of appellate counsel because of appellate counsel's failure to allege constitutional violations stemming from trial counsel's failure to make a record regarding juror strikes.
II.
In an appeal from a district court's denial of a habeas petition, we review the district court's conclusions of law de novo and its findings of fact for clear error. Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir.2005). If the issues raised in the petition have been adjudicated on the merits in the state court proceeding, the petition must be denied “unless the state court disposition ‘resulted in a decision contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States' or ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.’ ” Nooner v. Norris, 402 F.3d 801, 806 (8th Cir.2005) (quoting 28 U.S.C. § 2254(d)). Link's claim of ineffective assistance of trial counsel was fully adjudicated on the merits in the state court proceeding. Link, 25 S.W.3d at 148-49. The Missouri Supreme Court correctly identified Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as the controlling legal standard. Id. As a result, we may overturn that court's legal conclusions only if they are objectively unreasonable. Honeycutt v. Roper, 426 F.3d 957, 960 (8th Cir.2005).
To establish a claim of ineffective assistance of counsel, Link must demonstrate that (1) his trial counsel's performance was so deficient that it fell below an objective standard of reasonableness, and (2) the deficiency in the trial counsel's performance was prejudicial to the defense. Strickland, 466 U.S. at 687-92, 104 S.Ct. 2052. Because of the “distorting effects of hindsight,” our highly deferential scrutiny of counsel's performance “indulge [s] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Our review of the state court determination that Link has not proved an ineffective assistance of trial counsel claim, then, is “twice deferential: we apply a highly deferential review to the state court decision; the state court, in turn, is highly deferential to the judgments of trial counsel.” Nooner, 402 F.3d at 808.
Link contends that his attorneys did not explore investigative options that might have produced valuable mitigation evidence. He also faults trial counsel for failing to present mitigation evidence at the penalty phase of his trial. Because an inadequate investigation can undermine the reasonableness of an otherwise sound tactical decision to not put on evidence, we address first Link's claim regarding counsel's failure to conduct a reasonable investigation.
This claim relies heavily on the psychological report prepared by Dr. Fleming. According to Dr. Fleming, the sexual nature of Link's crimes suggests that Link had been the victim of early sexual trauma. Dr. Fleming also stated, however, that her psychological assessment was incomplete and inadequate because she was not able to establish a rapport with Link. As recounted above, she recommended that Link be examined by a black male, who would stand a better chance of establishing an effective rapport. If his attorneys had followed through with Dr. Fleming's recommendation, Link argues, they would have uncovered valuable mitigation evidence. In support of this latter contention, Link points to psychological evaluations prepared for his petition for post-conviction relief, including the report prepared by Dr. Cross.
Under Strickland, trial counsel has a duty to conduct a reasonable investigation or to make a reasonable determination that an investigation is unnecessary. Sidebottom v. Delo, 46 F.3d 744, 752 (8th Cir.1995). It is Link's burden to overcome the strong presumption that counsel's decision to forgo additional psychological testing was reasonable. Link asserts that Green's and Antoniou's testimony demonstrate that they had no strategic reason not to pursue further psychological examination, but neither Green nor Antoniou made this decision. According to the testimony, it was Martin who had primary responsibility for the penalty phase.FN2 We have no testimony from Martin herself regarding her reasons for declining to pursue further psychological testing. In the absence of such testimony, we have no reason to believe that Martin's performance was anything other than “reasonable professional assistance.” Nooner, 402 F.3d at 808.
FN2. We note that it “is not deficient performance for a team of attorneys to divide among them the workload of a case in a rational and efficient manner.” Bucklew v. Luebbers, 436 F.3d 1010, 1019 (8th Cir.2006).
This is not a case in which the record is clear that no reasonable attorney in Martin's position would have failed to pursue further psychological evidence. Contrast Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (holding that defense counsel's failure to examine a readily available file that counsel knows the prosecution will cull for aggravating evidence was clearly unreasonable). As the Missouri Supreme Court observed, previous examiners had concluded that Link had no mental disease or defect and that he would repeat his criminal behavior and kill again if released. Link, 25 S.W.3d at 149. Another report opined that, based on his criminal record, Link had a fixation on having sex with young girls. In the light of this damaging information, it would have been reasonable for Martin to believe that it would be better to avoid what Green would later call a “a battle of experts” over Link's psychological makeup.FN3
FN3. There is no suggestion that Martin was unaware of the prior reports. Nor would such a suggestion, absent supporting evidence, be plausible. As the state court concluded, Green knew of this material. It is unlikely that Green, who was presenting the guilt phase, was aware of this psychological information, but that Martin, who was responsible for mitigation, was not.
Furthermore, the state post-conviction court found that Link's various attorneys had put a great deal of work into his case, including the mitigation phase, and that his attorneys had discussed various options, a finding that suggests that whatever Martin's precise thinking may have been, the decision to forgo additional testing was the product of thought and deliberation. Because the decision to not pursue further psychological examinations was not unreasonable on the face of the record and because there is no testimony that Martin acted in other than a professional manner, Link has failed to overcome the strong presumption that counsel acted reasonably.
Link's claim pertaining to the failure to present evidence is also unavailing because Green's decision to not put on psychological evidence was a matter of trial strategy. Ordinarily, we consider strategic decisions to be virtually unchallengeable unless they are based on deficient investigation, in which case the “presumption of sound trial strategy ... founders on the rocks of ignorance.” White v. Roper, 416 F.3d 728, 732 (8th Cir.2005). Because Link has failed to show that his attorneys' investigation was deficient, Green's tactical decision enjoys a strong presumption of reasonableness.
In response to the prosecutor's question, posed immediately prior to the start of the penalty phase, as to why the defense would not be calling any expert witnesses, Green responded:
[A]s an officer of the court and as a counselor at law, I will represent to the court that as an attorney this is my fourteenth death penalty actual trial much less the number of death penalty cases I've handled, and I have used psychological testimony in the past in litigation cases, and at times I haven't. And based on my experience and training and information that's provided to me in this case through a number of different avenues, I have made a conscious decision not to put that on.
Green later stated that he had “made a conscious choice not to open the door to any evidence as to [Link's] personality disorders, or mental makeup,” and then asked the trial judge to preclude the prosecution from introducing any testimony from its psychologist, a request that the court granted. In light of this testimony, the Missouri Supreme Court concluded that
counsel's strategy was to keep out as much of Link's life as possible, and then preach a “sermon” against imposing the death penalty on someone they knew so little about. Ultimately, counsel made a conscious decision not to pursue or introduce psychological evidence and that decision was entirely a matter of trial strategy.
Link, 25 S.W.3d at 149. We conclude that this decision is not based upon an unreasonable determination of the facts and thus must be affirmed.
Moreover, even if the failure to pursue further psychological testing or present psychological evidence were missteps, the Supreme Court of Missouri concluded that Link suffered no prejudice. The court stated:
[I]f Dr. Cross had testified, the state would have called its own expert, who would have presented devastating testimony about Link's state of mind. Further, Dr. Cross's report contained evidence that Link lied to Dr. Cross and tried to fake his test results, and it verifies other expert opinions that Link is anti-social, aggressive, and a serial rapist. On this record, there is no reasonable probability that the jury would have come to a different result.
Link, 25 S.W.3d at 149. We conclude that the state court's holding resulted in a decision that was neither contrary to nor involved an unreasonable application of clearly established federal law. Nor was it based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Moreover, while it is true that Link's childhood may have been marked by incidents of abuse, as noted in Dr. Cross' report, they do not compare with those described in Rompilla. See 545 U.S. 374, 391-92, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (citing Rompilla v. Horn, 355 F.3d 233, 279 (3d Cir.2004) (Sloviter, J., dissenting)). Thus, we cannot say that the now-tendered evidence might well have influenced the jury's appraisal of Link's culpability, and so, the likelihood of a different outcome had the evidence been presented is not sufficient to undermine our confidence in the verdict reached by the jury. Cf. Id. at 393, 125 S.Ct. 2456 (holding that confidence in a jury's vote for a death sentence is undermined if the jury might well have reached a different verdict had the omitted mitigating evidence been presented). It bears mention that Link had already been sentenced to multiple terms of life in prison for two rapes he committed in January 1991. A jury could very well conclude that a life sentence would not result in any additional punishment for the death of this eleven-year-old child. Accordingly, because Link has not met his burden under either the performance or prejudice prongs of Strickland, his claims fail.
III.
Turning to his claim for ineffective assistance of appellate counsel, Link must fulfill the Strickland requirements by showing that his counsel was unreasonably deficient and that his defense was prejudiced by this deficiency. See Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). When appellate counsel competently asserts some claims on a defendant's behalf, it is difficult to sustain a ineffective assistance claim based on allegations that counsel was deficient for failing to assert some other claims. Id. at 288, 120 S.Ct. 746. Because one of appellate counsel's important duties is to focus on those arguments that are most likely to succeed, counsel will not be held to be ineffective for failure to raise every conceivable issue. Charron v. Gammon, 69 F.3d 851, 858 (8th Cir.1995). “Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Smith, 528 U.S. at 288, 120 S.Ct. 746 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir.1986)).
A.
Link's first claim of ineffective assistance of appellate counsel is based on counsel's failure to challenge on direct appeal the admission of the state's accident reconstruction evidence. Link argues, based on Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), that the admission of this evidence was fundamentally unfair because the state had not disclosed this evidence to the defense, while the defense was forced to disclose to the state its expert reconstruction evidence.
This claim fails for two reasons. First, Link does not compare the strength of this claim relative to those claims that were asserted on appeal. As a result, he cannot overcome the presumption that appellate counsel acted properly in making a strategic decision to focus on other claims. Second, Link is unable to establish prejudice, because it appears unlikely that the Missouri courts would have overturned his conviction based on this argument. Under Missouri case law interpreting Wardius, rebuttal witnesses need not generally be disclosed unless they are called to refute an alibi or a defense of mental disease or defect. State v. Clark, 975 S.W.2d 256, 263 (Mo.Ct.App.1998). Moreover, discovery violations do not warrant reversal unless they result in fundamental unfairness or prejudice to the defendant's substantial rights. State v. Cook, 5 S.W.3d 572 (Mo.Ct.App.1999). In the light of these decisions and the overwhelming evidence of Link's guilt independent of the now-challenged rebuttal evidence, we conclude that Link has not shown “a reasonable probability that, but for his counsel's unreasonable failure [to assert this claim], he would have prevailed on his appeal.” Smith, 528 U.S. at 285, 120 S.Ct. 746.
B.
Link also argues that appellate counsel was deficient for failing to assert error in the trial court's decision to strike a juror that Link asserts was qualified and for failing to strike two jurors that Link asserts were unqualified. In addition, Link claims that appellate counsel should have, in the state post-conviction relief appeal, asserted that trial counsel was ineffective for failure to make a sufficient record.
Link's claim, insofar as it applies to a deficiency in his post-conviction relief appeal, is not grounds for federal habeas corpus relief. There is no federal constitutional right to the effective assistance of post-conviction counsel. Clay v. Bowersox, 367 F.3d 993, 1005 (8th Cir.2004). In Missouri, where the direct appeal and post-conviction relief appeal are often consolidated, the appellant is therefore entitled to effective assistance of counsel only on that portion of the appeal that is devoted to direct appeal issues. Id.
Thus, we focus solely on Link's assertion that appellate counsel should have asserted a jury selection claim as part of the direct appeal. Once again, Link has not established the strength of this claim relative to the claims that were asserted by appellate counsel. He is therefore unable to overcome the strong presumption that appellate counsel made a reasonable strategic decision not to press this particular claim. Such a strategic decision is certainly within the reasonable range of choices an appellate advocate might make, given the deficient record created on this issue by the trial counsel and the fact that neither of the jurors about whom Link complains ultimately served on the jury.
The judgment is affirmed.
January 11: Martin Link kidnaps 11-year-old Elissa Self as she goes to school. She is eventually strangled.
January 15: Elissa Self’s body is found washed ashore along the St. Francis River.
September 26: Link is charged by indictment with first degree murder, as well as other felonies.
July 17: The jury trial begins.
August 10: Jury returns verdicts of guilty of murder in the first degree, rape and kidnapping. August
12: July returns death sentences as punishment for first degree murder conviction.
November 9: Link ñles a notice of appeal.
October 1: Link files a Rule 29.15 motion for postconviction relief in the St. Louis City Circuit Court.
July 2: The Circuit Court denies post-conviction relief.
August 1: The Missouri Supreme Court affirms Link’s conviction and sentence and the denial of post- conviction relief. State v. Link, 25 S.W.3d 136 (Mo. banc 2000). December 4: The United States Supreme Court denies certiorari review of the direct appeal and post-conviction appeals. Link v. Missouri, 531 U.S. 1040 (2000).
December 4: Link files a petition for writ of habeas corpus in the United States District Court for the Eastern District of Missouri.
September 10: The District Court denies the petition for writ of habeas corpus in an unpublished order.
December 8: The Court of Appeals affirms the denial of habeas relief. Link v. Luebbers, 469 F.3d 1197 (8th Cir. 2006)
October 29: The Supreme Court declines discretionary review. Link v. Roper, 128 S. Ct. 488 (2007)
April 17: The state files a motion to set an execution date.
January 7: The Missouri Supreme Court issues an execution warrant setting February 9, 2011, as the execution date.
Missouri Supreme Court Case Number: SC78466
*¦Ralph Davis, executed April 28, 1999
*¦Floyd Cochran, executed Sept. 26, 1947
A. Officer Maher's and Officer Flaherty's Testimony
A. The Motion Court's Findings and Conclusions