33rd murderer executed in U.S. in 2014
1392nd murderer executed in U.S. since 1976
9th murderer executed in Missouri in 2014
79th murderer executed in Missouri since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(33) |
Leon Vincent Taylor B / M / 36 - 56 |
Robert Leroy Newton W / M / 53 |
Summary:
Taylor, Willie Owens, and Tina Owens decided to rob a gas station. The attendant, 53 year old Robert Leroy Newton, was in the station with his 8 year old stepdaughter. Taylor entered the store, drew a gun and told Newton to put $400 in a money bag. Newton complied and Willie Owens took the money to the car. Taylor then ordered Newton and the child to a back room. Newton pleaded for Taylor not to shoot him in front of the little girl, but Taylor shot him in the head. He tried to kill the girl but the gun jammed, so he locked her in the room and the trio drove away. Taylor later told his accomplices that he “should have choked the bitch.”
Taylor was convicted of murder by one jury who was unable to agree on his punishment, so the judge imposed the death sentence. That sentence was reversed on appeal, but at the subsequent trial the jury found Taylor guilty and sentenced him to death. Yates testified against Taylor in both trials.
Citations:
State v. Taylor, 944 S.W.2d 925 (Mo. 1997). (Direct Appeal-Reversed)
State v. Taylor, 18 S.W.3d 366 (Mo. 2000). (Direct Appeal-Affirmed)
Taylor v. State, 126 S.W.3d 755 (Mo. 2004). (PCR)
Taylor v. Roper, 577 F.3d 848 (8th Cir. Mo. 2009). (Federal Habeas)
Final Meal:
Eggs, bacon, doughnuts and an orange drink.
Final Words:
In a final statement, Taylor apologized to Newton's family because "our lives had to entwine so tragically" and thanked his family for their support and love. "I am also sorry to have brought all of you to this point in my life to witness this and/or participate. Stay strong and keep your heads to the sky."
Internet Sources:
"Missouri executes Leon Taylor for 1994 killing in Kansas City area." (AP November 19, 2014 2:23 am)
BONNE TERRE • A man who killed a suburban Kansas City gas station attendant in front of the worker's young stepdaughter in 1994 was put to death early Wednesday — the ninth execution in Missouri this year. Leon Vincent Taylor, 56, was pronounced dead at 12:22 a.m. at the state prison in Bonne Terre, minutes after receiving a lethal injection. With Taylor's death, 2014 ties 1999 for having the most executions in a year in Missouri.
Taylor shot worker Robert Newton to death in front of Newton's 8-year-old stepdaughter during a gas station robbery in Independence, Missouri. Taylor tried to kill the girl, too, but the gun jammed. Taylor's fate was sealed Tuesday when Gov. Jay Nixon declined to grant clemency and the U.S. Supreme Court turned down his appeal.
His body covered by a white sheet, Taylor could be seen in the execution chamber talking to family members through the glass in an adjacent room. Once the state started injecting 5 grams of pentobarbital, Taylor's chest heaved for several seconds then stopped. His jaw went slack and he displayed no other movement for the rest of the process.
Four of Taylor's family members sat in a room to his left and looked on without reaction as the drug killed Taylor in about eight minutes. At a time when lethal injections have gone awry in Oklahoma, Ohio and Arizona and taken an extended period to kill an inmate, Taylor's execution went off without any visible hitches or complications with the drug or equipment.
In a final statement, Taylor apologized to Newton's family because "our lives had to entwine so tragically" and thanked his family for their support and love. "I am also sorry to have brought all of you to this point in my life to witness this and/or participate," Taylor said. "Stay strong and keep your heads to the sky."
Speaking to reporters after the execution, Newton's brother, Dennis Smith, noted that it had been about 7,500 days since the killing and said the family has missed Newton every one of them. Smith described Newton as a hard worker, generous and with a memorable laugh. At times, Smith paused to compose himself as tears rolled down his cheeks. "It would just take a coward to want to hurt someone like him," Smith said.
Taylor's execution was briefly delayed as he sought to have his half brother, Willie Owens, as a witness. Taylor's lawyers filed an appeal four hours before the scheduled execution time and the Missouri Supreme Court granted the request to have the one-time co-defendant in the slaying watch his brother die. Department of Corrections spokesman Mike O'Connell said Owens ultimately decided not to attend the execution. Taylor's last meal consisted of eggs, bacon, doughnuts and an orange drink. O'Connell said Taylor later turned down the sedative Valium and the sedative midazolam.
According to court records, Taylor, Owens and his half-sister, Tina Owens, decided to rob a gas station on April 14, 1994. Newton was at the station with his stepdaughter. Taylor entered the store, drew a gun and told Newton, 53, to put $400 in a money bag. Newton complied and Willie Owens took the money to the car. Taylor then ordered Newton and the child to a back room. Newton pleaded for Taylor not to shoot him in front of the little girl, but Taylor shot him in the head. He tried to kill the girl but the gun jammed, so he locked her in the room and the trio drove away. Taylor was arrested a week after the crime when police responded to a tips hotline call.
Court appeals claimed the death penalty for Taylor was unfair for several reasons. Taylor's original jury deadlocked and a judge sentenced him to death. When that was thrown out, an all-white jury gave Taylor, who was black, the death sentence. In 2002, the U.S. Supreme Court ruled that only a jury could impose a death sentence. Taylor's lawyers contended that a Missouri Supreme Court ruling after the U.S. Supreme Court decision led the state to commute at least 10 other death sentences for inmates sentenced by a judge to life in prison — everyone except Taylor.
Attorney Elizabeth Carlyle said Taylor essentially was penalized for successfully appealing his first conviction. The clemency request to Nixon said Taylor turned his life around in prison, becoming a devout Christian who helped other prisoners. The petition also cited abuse Taylor suffered as a child, saying his mother began giving him alcohol when he was 5 and that he later became addicted to alcohol and drugs.
Classification: MurdererCharacteristics: Robbery
Number of victims: 1
Date of murder: April 14, 1994
Date of birth: March 2, 1958
Victim profile: Robert Newton (gas station manager)
Method of murder: Shooting
Location: Jackson County, Missouri, USA
Status: Sentenced to death on May 11, 1995 "Death sentence for Leon Taylor upheld."
A federal appeals court has upheld the death sentence for Leon Taylor, who killed an Independence service station attendant 15 years ago. Taylor had claimed the prosecutors improperly removed African-Americans from the juries that convicted him and recommended his execution.
Taylor killed the attendant as his eight-year-old stepdaughter watched. The prosecutor says Taylor also pointed a gun at the girl’s head but it didn’t go off. [Missourinet]
Missouri executes Leon Taylor for 1994 murder in Independence
November 19, 2014 by Mike Lear
Missouri has carried out the execution of 56-year-old Leon Taylor, who was sentenced to death in 1999 for the murder in April 1994 of Robert Newton, the attendant at an Independence convenience store he had just robbed of $400. He received a lethal dose of pentobarbital at 12:14 and appeared to stop breathing less than two minutes later, at the Eastern Reception, Diagnostic & Correctional Center in Bonne Terre. His official time of death was 12:22.
The U.S. Supreme Court on Tuesday denied appeals for a stay of execution. Governor Jay Nixon then denied an appeal for clemency for Taylor. Taylor is the ninth man Missouri has executed this year and the 11th since November, 2013. Only in 1999 has Missouri carried out that many executions in a year.
Prosecutors sought the death penalty against Taylor for several of what Missouri terms, “aggravating circumstances,” including that the murder was connected to a robbery, and because Taylor committed the murder while Newton was holding the hand of his then 8-year-old stepdaughter, Sarah Yates. After fatally shooting Newton, Taylor pointed the gun at Yates and pulled the trigger but it jammed. He then locked her in the back room of the convenience store with the body of her stepfather. Taylor later told his half-brother and half-sister, who had been involved in the robbery with him, that he, “should have choked the bitch.”
Taylor was convicted of murder by one jury who was unable to agree on his punishment, so the judge imposed the death sentence. That sentence was reversed on appeal, but at the subsequent trial the jury found Taylor guilty and sentenced him to death. Yates testified against Taylor both times.
Taylor’s attorneys asked the U.S. Supreme Court to halt his execution based on a 2002 federal court ruling that said judges could not impose a death sentence when jurors fail to agree on one. That ruling applied retroactively, and Taylor’s attorneys argued that his was the only case of someone for whom a judge had imposed a death sentence that was not later commuted to life, making his circumstance unusual. His attorney also argued that the execution should not be carried out because the jury that sentenced him to death was all white. Six blacks were said to have been dismissed from serving as jurors by the prosecutor in the 1999 case, while the jury that was unable to agree on a death sentence had been racially mixed.
Taylor was scheduled to be executed in September but the Supreme Court lifted that execution warrant when his attorneys said they would be unable to work on his case at that time. Instead, Earl Ringo, Junior, was executed September 10 for 1998 the murders of a Columbia restaurant manager and a delivery driver.
"Missouri Gov, Attorney General statements on Taylor execution," by Mike Lear. (November 19, 2014)
Missouri’s Governor and Attorney General have issued statements regarding the execution of Leon Taylor. Taylor, 56, died by lethal injection early this morning at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre.
Governor Jay Nixon denied a petition for clemency for Taylor, and issued this statement: “Earlier today, my counsel provided me with a final briefing on the comprehensive review of the petition for clemency from Leon Taylor, who was convicted and sentenced to death for the murder of Robert Newton. Each request for clemency is considered and decided on its own merit and set of facts, and this is a process and a power of the Governor I do not take lightly. After due consideration of the facts, I have denied this petition.
“Robert Newton was murdered in cold blood, even after he handed over money during a robbery of the gas station he managed. If Leon Taylor’s gun had not jammed, Taylor also would have murdered Newton’s eight-year-old stepdaughter as well. There is no question of guilt in this murder, and my denial of clemency upholds the court’s decision to impose a sentence of death. “I ask that the people of Missouri remember Robert Newton, and keep his family in their thoughts and prayers.”
After Taylor’s execution was carried out, Attorney General Chris Koster issued a statement: “Leon Taylor coldly murdered a man in front of his young stepdaughter. Those who knew and loved Robert Newton waited two decades for the imposition of justice that finally came early this morning.”
"Changed or not, execution looms for Missouri inmate Leon Taylor, by Mike Lear. (November 14, 2014)
The attorney for the man Missouri is scheduled to execute next week told Missourinet he is a changed man, but one of the men that prosecuted him remains confident the death sentence is just. It’s been more than 20 years since Leon Taylor fatally shot Robert Newton, the attendant of an Independence service station that Taylor had just robbed. After killing Newton, Taylor attempted to shoot Taylor’s then-eight-year-old stepdaughter as well, but the gun didn’t fire, and he left her with Newton’s body. Taylor is sentenced to die by lethal injection early Wednesday morning at the prison at Bonne Terre.
Attorney Elizabeth Unger Carlyle has represented Taylor since 2003. She said he is a “dramatically” different man from the one he was on April 14, 1994. “He has become a real force for good and a force for God at the Potosi Correctional Center,” said Carlyle.
She said a petition for clemency transmitted this week to the office of Governor Jay Nixon includes statements from people inside and outside the prison about his influence, and letters from pastoral groups and current and former legislators urging the governor to commute his sentence. The Governor’s office’s policy is to not offer comment on pending applications for clemency, and Nixon has only granted clemency one in his six years as governor. Carlyle knows the governor’s track record regarding clemency, which includes denying it for men executed since November of last year. She believes the one time Nixon granted clemency, in the case of Richard Clay who also committed a murder in Missouri in 1994, he based that decision on a number of factors, “including the activities of the person in prison.”
Carlyle knows skepticism is common toward people sentenced to death who claim to find religion and change for the better, but she believes Taylor is legitimate. “One of the things Leon does is he’s a songwriter and he writes and records his own praise songs,” said Carlyle. “I think if you listen to them you can see that they come from his heart and I think that’s where his heart is.”
Taylor wrote a letter of apology and a poem for Newton’s widow, Astrid Newton Martin. Martin said in the 2012 documentary Potosi: God in Death Row, that she has forgiven Taylor. “It took me … I think 17, almost 18 years to finally realize I need to forgive and I did,” Martin said in the film. “I can honestly say I forgive him if he really means what he said in the letter.” “You did some horrible stuff to me and for a long time I could not forgive you,” Martin said of Taylor, “especially knowing you were trying to hurt my little girl.”
Martin’s daughter, now nearly 30, has declined recent requests for media interviews. The film includes a recording of what she had to say in a 1995 radio interview. “I have never had so many nightmares,” she said then. “The best thing in my life was destroyed. Now I too feel like dying … it’s lonely out here with no dad. It is dumb for the best, sweetest and kindest man and dad to be killed over a lousy $450. I think Leon Taylor should get the death penalty.” Taylor’s relatives that were with him the night of the murder said he later said of the little girl that he, “should have choked the bitch.”
The attempt Taylor made to kill her is one of the “aggravating factors” Michael Hunt and the rest of the prosecution team presented when it asked for the death penalty. “Reasons why this is different than any other case,” Hunt told Missourinet in describing aggravating factors. “Essentially what you want to have are … egregious factors why this [case] is different.”
Hunt is still with the Jackson County Prosecutor’s office. He said the case stuck with him. “The one thing you don’t ever forget is that little girl,” he told Missourinet. “It’s just so horrendous to hear her version of standing there, holding her stepfather’s hand as he is shot and killed, as he is pleading for his life, and then after he has been shot in the head, to have her describe how he turns that gun on her and pulls that trigger … that’s a horrendous act and it’s a horrendous act for her to have to relive and tell the jury.”
Hunt said he respects the beliefs of those who, for varying reasons, don’t want to see Taylor executed next week. “When you start down this path on our side there has to be a comfort level that this is the appropriate punishment, because there’s no way that I could sit there as the prosecutor and ask that jury to sentence him to death unless I was comfortable with it,” Hunt said. “I was then and I am now.”
Taylor has also declined recent interview requests, but he is featured in that documentary. In it, he talked about growing up with an alcoholic mother and having to raise his brothers and sisters. “The men who were supposed to be my role models, they weren’t. They were women beaters and alcoholics themselves, so that’s basically what I grew up around,” said Taylor. At the time he reacted to the news that Missouri might soon resume carrying out executions, saying, “I’m not worried about that.” Taylor continued, “If my number comes up during that time, I’m fine. I’m good. I’m ready.”
• Killer who murdered gas station worker in front of his young stepdaughter apologizes
• Taylor executed after last meal of eggs, bacon and doughnuts
• Leon Taylor, 56, died through lethal injection at Bonne Terre state prison
• He was convicted of shooting Robert Newton in the head during a robbery
• Taylor also tried to kill the eight-year-old stepdaughter, but his gun jammed
• He apologized to Newton's family as 'our lives had to entwine so tragically'
by Annabel Grossman for MailOnline. (Published: 01:36 EST, 19 November 2014)
A man who killed a gas station attendant in front of the worker's eight-year-old stepdaughter in 1994 was executed in Missouri in the early hours of this morning. Leon Taylor, 56, was sentenced to death through lethal injection for the murder of Robert Newton, who was shot in the head during a gas station robbery in Independence. Taylor also tried to kill Newton's young stepdaughter, but the gun jammed.
In a final statement, Taylor apologized to Newton's family because 'our lives had to entwine so tragically' and thanked his family for their support and love. 'I am also sorry to have brought all of you to this point in my life to witness this and/or participate,' Taylor said. 'Stay strong and keep your heads to the sky.' His last meal consisted of eggs, bacon, doughnuts and an orange drink. Department of Corrections spokesman Mike O'Connell said Taylor later turned down the sedative Valium and the sedative midazolam.
The convicted killer could be seen in the execution chamber at Bonne Terre state prison talking to family members through the glass in an adjacent room, with his body covered by a white sheet.
Once the state started injecting 5 grams of pentobarbital, his chest heaved for several seconds then stopped. His jaw went slack and he displayed no other movement for the rest of the process.
Four of Taylor's family members sat in a room to his left and looked on without reaction as the drug killed Taylor in about eight minutes.
According to court records, Taylor had decided to rob the gas station with his half brother and half sister on April 14, 1994. He entered the store, drew a gun and told Newton, 53, to put $400 in a money bag.
The half brother, Willie Owens, then took the money to the car, while Taylor ordered Mr Newton and the young girl to a back room.
Mr Newton pleaded not to be killed in front of the little girl, but Taylor shot him in the head and then tried to kill the child. But the gun jammed, so Taylor locked her in the room and the trio drove away.
'She had the gun turned on her,' said Michael Hunt, an assistant Jackson County prosecutor who worked on the case. 'It didn't fire. If it had fired, we'd have had a double homicide.'
The execution chamber at Bonne Terre state prison, Missouri, where Leon Taylor received the lethal injection
He added that the child's testimony at trial was pivotal in the death sentence.
'You can imagine what a horrible crime this was, but when you see it coming out of a young person like that, it was hard to listen to,' Mr Hunt said.
Taylor was arrested a week after the crime when police responded to a tips hotline call.
His execution is the ninth in Missouri this year, meaning 2014 currently ties with 1999 for having the most executions in a year in the state.
At a time when executions have gone awry in Oklahoma, Ohio and Arizona, Taylor's death occurred without any visible complications with the drug or equipment.
Taylor's fate was sealed Tuesday when Governor Jay Nixon declined to grant clemency and the U.S. Supreme Court turned down his appeal.
Court appeals claimed the death penalty for Taylor was unfair for several reasons.
The original jury deadlocked and a judge sentenced him to death. When that was thrown out, an all-white jury gave Taylor, who was black, the death sentence.
In 2002, the U.S. Supreme Court ruled that only a jury could impose a death sentence.
Taylor's lawyers contended that a Missouri Supreme Court ruling after the U.S. Supreme Court decision led the state to commute at least 10 other death sentences for inmates sentenced by a judge to life in prison - everyone except Taylor.
Attorney Elizabeth Carlyle said Taylor essentially was penalized for successfully appealing his first conviction.
The clemency request to Governor Nixon said Taylor turned his life around in prison, becoming a devout Christian who helped other prisoners.
The petition also cited abuse Taylor suffered as a child, saying his mother began giving him alcohol when he was five and that he later became addicted to alcohol and drugs.
On April 14, 1994, Willie and Tina Owens, who were brother and sister, were drinking and smoking marijuana at the apartment where they lived. Sometime between 6:00 and 7:00 p.m., Leon Taylor, who was their half-brother, joined the party. At some point, Taylor, Willie and Tina went out riding in Tina’s car, discussing the possibility of robbing a drug dealer. Taylor, however, suggested a gas station in Independence where he knew there would only be one person working. They drove to that gas station.
While at the gas station, Taylor and Willie used the restroom. When Willie returned, Taylor was standing outside and Tina was coming out of the gas station after paying for some gas. The trio left, but only a few blocks away from the gas station, the oil light came on and they turned around and went back. Willie woke up Tina, who had already dozed off, and asked for money to pay for the oil. She gave him a one dollar bill and four quarters, and Willie went inside to get the oil. The only people in the store were Robert Newton, who was fifty-three years old, and his eight-year-old stepdaughter, Sarah Yates.
Willie, Mr. Newton and Sarah went to the back room to get the oil, and while they were there, Taylor came inside and stated that they needed a different weight of oil. Taylor was standing with one arm behind his back, and after asking for the oil, he pulled his arm around and was holding a 9 millimeter semi-automatic pistol. Mr. Newton asked Taylor not to shoot because he had his little girl there and he did not want her to have to see him dead. Taylor told Mr. Newton to get the money or he would shoot. Mr. Newton complied and placed the money in the bag.
Willie stated that he did not want anything to do with this and placed the money Tina had given him on the counter. However, Willie took the money from Mr. Newton and returned to the car, leaving Taylor inside the gas station. Taylor asked Mr. Newton if there was a back room and the three of them went there. Taylor stood in the door frame facing Mr. Newton, and asked if there was a lock on the door. Sarah turned away to look for another way out of the room, and while she was looking away, she heard a loud boom. When Sarah turned back, her father was on the floor. Taylor then turned to Sarah and pointed the gun at her. Sarah raised her hands and pleaded for Taylor not to shoot her, offering to do anything he wanted. She did not hear Taylor’s response because she still could not hear anything after the noise of the gun. However, Taylor pulled the trigger of the pistol while it was pointed at Sarah, but it did not fire. Taylor looked at the gun in a “funny” way and then left, locking the door.
Taylor came out of the store, pulling on the gun’s slide and stating, “the motherfucker jammed”. Taylor reported that he had shot the man in the head, and then said he had to go get the little girl. Taylor asked if there was another gun in the car, but the others wanted to get away, so they drove off. As they were driving away, Taylor said that the little girl had been standing there “watching her daddy bleed,” and then put her hands in the air offering to do anything he wanted. Taylor said that Sarah’s pleading for her life aggravated him, and stated that he should have choked her. Meanwhile, Sarah prayed by her father’s body, and then left the room a few minutes later. Sarah called 911 and then hid under a table.
Officer Halsey, of the Independence Police Department, arrived at approximately 9:58 p.m., and found Sarah on the telephone. Officer Halsey found Mr. Newton lying on his back on the floor with massive head trauma. The victim died from his head wound.
Several days after the murder, Officer Kenneth Cavanah, of the Independence Police Department, received a TIPS hot line implicating Taylor. Taylor was arrested the next day at his home in Kansas City and, after informing Taylor of his Miranda rights, Officer Cavanah drove Taylor to Independence. Officer Cavanah advised Taylor of the murder he was suspected of committing. Taylor indicated that he had heard about it and knew where it happened, but there was nothing he could do about it, and that he had “no emotion” about the murder. Taylor stated that he had been at the gas station once, but that he had never been inside.
The next day, April 22, 1994, while at the Kansas City Police Department, Taylor was again advised of his rights and agreed to talk to Officers Cavanah and Johann after they allowed him to speak to Willie. Taylor asked to view Willie’s videotaped statement, and after a few minutes of watching it, stated that “he had seen enough”. Taylor then agreed to give a statement on videotape. In his statement, Taylor admitted that he had shot and killed Mr. Newton, but claimed that it was an accident. Taylor stated that he, Willie and Tina were driving around talking about robbing a drug dealer, and that he suggested the gas station where he knew there was only one attendant. Taylor stated that they got some gas, left the station, but went back when the oil light came on. When asked if they left the first time because the little girl was there, Taylor responded, “yeah, I guess”.
Taylor stated that on their return, Willie went inside first and he followed, demanding the money. Willie took the money and went back to the car while Taylor stayed behind and ordered Mr. Newton and his stepdaughter into the back room. Taylor stated that he told them he was not going to hurt them, but claimed that when he was closing the door the gun fired accidentally. Taylor asserted that he was not sure how this happened, saying, “I don’t know if I hit the wall, hit the door, or something,” and noted he was just “nervous and drinking”. Afterwards, he said they all went home and split the money. After the videotaped statement was completed, Officer Johann asked Taylor how they were standing when Mr. Newton was shot. Taylor stated that they were facing each other, with the victim only a few feet away. Taylor denied trying to shoot Sarah, stating that he may have pointed the gun at her when he was looking at the gun in amazement.
Forensic examination of the evidence revealed that Mr. Newton was shot in the forehead with a 9 millimeter full-metal-jacketed bullet from approximately six inches away, and that the bullet exited at the base of the neck with a downward trajectory, indicating that the victim was “ducking” down. In addition, it was shown that a normal 9 millimeter semi-automatic pistol would not go off accidentally unless it is “slammed” down on a surface or dropped from a distance. The cause of Mr. Newton’s death was a single gunshot would to his head with penetrating brain injuries. The jury also heard evidence of Taylor’s prior convictions for murder in the second degree, robbery in the first degree, and attempted robbery in the first degree, and his convictions that arose out of the facts of this case. The jury unanimously recommended that Taylor be sentenced to death.
Missourians to Abolish the Death Penalty
Missourians for Alternatives to the Death Penalty
Meet the men Missouri has executed since 2000. (Slideshow)
A total of 79 individuals convicted of murder have been executed by the state of Missouri since 1976. All were by executed by lethal injection. All executions in Missouri were suspended between June 26, 2006, and June 4, 2007, due to a federal court ruling. Executions resumed on May 20, 2009.
1. George Mercer January 6, 1989 Karen Keeton
State v. Taylor, 944 S.W.2d 925 (Mo. 1997). (Direct Appeal-Reversed)
Defendant was convicted before the Circuit Court, Jackson County, William F. Mauer, J., of first-degree murder, first-degree robbery, first-degree assault, and three counts of armed criminal action, and was sentenced to death on murder charge and life imprisonment plus 315 years on the other charges. Defendant appealed judgment of conviction and judgment overruling his postconviction motion. The Supreme Court, Benton, J., held that: (1) trial court did not abuse its discretion nor violate defendant's constitutional rights in denying one-day continuance; (2) trial court did not abuse its discretion in not ordering disclosure of arrest records of accomplices who testified as state witnesses; (3) prosecutor's comment during rebuttal closing argument on lack of evidence supporting defense theory that gun went off accidentally was not an impermissible allusion to defendant's decision not to testify; (4) state's rebuttal argument did not constitute improper personal vouching; and (5) prosecutor's improper closing argument during penalty phase urging jury to “get mad” and decide case based on “emotion” warranted reversal of death penalty imposed by judge after jury deadlocked on issue of punishment.
Judgment of conviction affirmed in part and reversed and remanded in part; judgment on postconviction motion affirmed in part and dismissed as moot in part. Robertson, J., filed separate opinion dissenting in part.
State v. Taylor, 18 S.W.3d 366 (Mo. 2000). (Direct Appeal-Affirmed)
Defendant was convicted of first-degree murder, first-degree robbery, first-degree assault, and armed criminal action, and the trial judge sentenced him to death. Defendant appealed. The Supreme Court, 944 S.W.2d 925, affirmed convictions but granted new penalty phase trial on murder conviction. In second penalty phase trial, the Circuit Court, Jackson County, Charles E. Atwell, J., imposed death penalty on jury recommendation. Defendant again appealed. The Supreme Court, Wolff, J., held that: (1) hesitancy in giving view on death penalty was race-neutral reason for peremptory strike; (2) judge properly looked at the totality of the circumstances when evaluating Batson challenge; (3) evidence that in other murder cases the prosecutor did not seek the death penalty was insufficient to establish an equal protection violation; and (4) testimony of victim's stepdaughter who witnessed shooting as an eight-year-old, describing her relationship with the victim was relevant victim impact testimony. Affirmed.
MICHAEL A. WOLFF, Judge.
Leon Taylor was convicted in his first trial of first degree murder, first degree robbery, first degree assault, and three counts of armed criminal action. After the jury deadlocked, the trial judge sentenced Taylor to death on the murder conviction. This Court affirmed the convictions but granted a new penalty phase trial on the murder conviction. State v. Taylor, 944 S.W.2d 925 (Mo. banc 1997). In the second penalty phase trial, the jury recommended, and the court imposed, the death penalty for the first-degree murder conviction. We have jurisdiction. Mo. Const. art. V, sec. 3.
Taylor's main contentions on appeal are that he was discriminated against on the basis of his race in two respects:
(1) That the prosecutor's peremptory strikes, which resulted in an all white jury, violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (2) That the Jackson County prosecutor's office discriminates against African–American defendants, and specifically Taylor, in the process that it uses to decide when to seek the death penalty.
Both of Taylor's major contentions are based on statistical disparities. In racial discrimination cases, it has been commonplace for courts to observe that “statistics tell much, and courts listen.” FN1 However, statistical analysis is only the beginning, not the end of the inquiry. The ultimate issue is whether racial discrimination has occurred, and racial discrimination is an intentional act. Courts consider statistical evidence of racial disparities and in some cases shift the burden of producing evidence or explanation to the state, as in Batson.
FN1. This quote appears to have originated in the 1962 decision of the United States Court of Appeals for the 5 th Circuit in State of Alabama v. United States, 304 F.2d 583 (5 th Cir.1962).
In this case, the trial judge gave careful consideration to Taylor's allegations and made appropriate findings based upon the evidence in accordance with the totality of circumstances. Although racial disparities exist, as Taylor points out, the burden of persuasion as to intentional racial discrimination remains with Taylor. The trial court found after careful review of the circumstances that Taylor failed to meet this burden. For reasons that follow, we affirm the trial court's judgment.
I. Facts
On April 14, 1994, Taylor, his half-brother, Willie Owens, and his half-sister, Tina Owens, were driving in Tina's car, discussing various robbery possibilities. Taylor suggested a gas station in Independence where only one person would be working. The trio went to the station and purchased some gasoline. Taylor asked whether they were going to rob it. Tina Owens said “no” because a little girl was inside. Sarah Yates, an eight-year-old, was keeping company with Robert Newton, her stepfather and the gas station manager.
The three left the station, only to return a few moments later after the oil light came on. Willie Owens went into the station and asked for some oil. Taylor next entered the store and stated they needed a different weight of oil. Taylor then drew a pistol and stated that he would shoot Newton unless he gave them money. Newton complied, handing Owens approximately $400 in a bank moneybag. Owens took the money and returned to the car.
Taylor directed Newton and the child to the station's back room. Taylor shot Newton once in the head, killing him. Taylor then pointed the gun at the child. Taylor pulled the trigger, but the gun jammed and did not discharge. Frustrated, Taylor locked the child in the back room and returned to the car. Taylor told Willie and Tina Owens that he had shot the man and that he had to go back inside to get the little girl. However, because the Owens couple wanted to leave, they then drove away.
II. Did the Prosecutor's Explanations for Striking Venirepersons Violate Batson ?
Taylor claims the trial court erred in overruling his motion based on Batson to the prosecutor's peremptory strikes of six African–American venirepersons. He contends that the trial court judge did not look at the “totality of the circumstances” in denying his Batson challenges as required in Batson and our cases. We disagree.
After Taylor's case was remanded to the trial court for a new trial as to the penalty, the new jury was all white.FN3 The trial court conducted the jury selection in three phases.FN4 In the first phase approximately 145 venirepersons were summoned for jury service in the Jackson County courthouse. Each venireperson filled out a questionnaire, which was drafted by the trial court with suggestions from counsel. The second phase included two panels, one in the morning and one in the afternoon, consisting of examination by counsel. The examination covered topics that were either not the subject of the questionnaire or had nothing to do with the issues of publicity or death qualification. The trial court ruled on strikes for cause in this second phase. In the third phase of jury selection, members of the venire were questioned individually, out of the presence of all other members, regarding their views touching upon the death penalty, whether they had read or heard anything about the case, and other related sensitive issues. In this third phase, both the trial court judge and counsel questioned the venirepersons. The trial court judge allowed each side eleven peremptory strikes, including two peremptory strikes for alternate venirepersons. See sections 494.480 and 494.485.FN5
FN3. In Taylor's first trial, four African–Americans served on the jury. The jury deliberated over a two-day period and could not agree on punishment.
FN4. All three phases were held on different days within a few weeks of each other.
FN5. All statutory references are to RSMo 1994, unless otherwise indicated.
To establish a claim under Batson, the defendant must object to the prosecutor's use of peremptory challenges as violating Batson and identify the cognizable racial group to which the stricken veniremember belongs. State v. Parker, 836 S.W.2d 930, 939 (Mo. banc), cert. denied, 506 U.S. 1014, 113 S.Ct. 636, 121 L.Ed.2d 566 (1992). The state then must provide race-neutral explanations for the peremptory challenges. Id. This step of the process does not demand an explanation that is persuasive. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). If the prosecutor articulates a reason, the defendant must prove that the state's proffered reason was merely pretextual and that the strike was in fact racially motivated. Id. An appellate court will not overturn such a finding unless clearly erroneous. Parker, 836 S.W.2d at 939, n. 7, citing Hernandez v. New York, 500 U.S. 352, 368–69, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); State v. Griffin, 756 S.W.2d 475, 482 (Mo. banc 1988); and State v. Antwine, 743 S.W.2d 51, 66 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988).
Taylor objected that striking all six African–American venirepersons violated his and the prospective jurors' rights to due process and equal protection under the United States Constitution and the Missouri Constitution. The record reflects that the trial court judge allowed both sides to make a detailed Batson record. The trial court judge found that the prosecutor gave clear and reasonably specific explanations of his legitimate reasons for exercising the peremptory challenges for all of the stricken venirepersons. FN6 As to the six African–American prospective jurors that were struck, the prosecutor gave the following explanations:
FN6. The trial judge did not accept all of the prosecutor's explanations. For instance, the court did not find that working for Ad Hoc, an organization that supports law enforcement and victim groups, as a race-neutral reason. Further, the court did not find knowing two criminal defense attorneys was a race-neutral reason. See Footnote 8 . However, the prosecutor was able to articulate other race-neutral reasons for striking the venireperson.
Venireperson O.S.: “It goes back to several. One is hardship for money .... He's wanted off because of his commitments as a coach. Also, his answer during the individual questioning was the ‘place myself in his shoes.’ We took that to mean he identified with him on this.”
Venireperson E.K.: “During the death penalty qualification, your initial question is what are the views on the death penalty. She, without hesitation, said, ‘Personally, I'm opposed to the death penalty.’ Also, it's a belief she has held for some time.”
Venireperson T.J.: “[T.J.] marked F FN7 on the questionnaire which flagged her for the prosecution. She stated that she could not impose the death penalty. She works for Ad Hoc .... She has two brothers who were convicted themselves of robbery in the first degree. She was questioned herself about a murder that her nephew was involved in. She is a friend of Doc Holliday.”
FN7. The jury questionnaire included questions about the venirepersons' views on the death penalty. The answer marked F stated: “Although I'm philosophically, morally, or religiously against the death penalty, I do believe I can follow the law that requires me to fully consider the death penalty as one of the two possible options that I may vote for in this case.”
Venireperson B.B.: “[B.B.], during individual voir dire, stated that, ‘My first choice is life without parole. Very very extreme to give the death penalty.’ On her questionnaire ... she has seen the results of someone being abused. From all the discovery I've got, the Defendant's mitigation is abuse as a child.”
Alternate Venirepersons L.W. and C.S.: “We struck the two who marked lowest down towards leaning towards life without parole. Venireperson 64 also knows Charles Brown.FN8 Charles Brown tried the Calvert Antwine case back when I was a public defender and the effect of that case. Mr. Hunt's notes show that she was very hesitant and that she stated, paraphrasing, she would lean towards life without parole.”
FN8. Charles Brown and Doc Holliday are attorneys involved in criminal defense prosecution. Mr. Brown was involved in a highly publicized criminal trial in Kansas City. Mr. Holliday is also an attorney active in Freedom, Inc., an African–American political organization. Both are African–American. The court found that knowing Mr. Holliday was not a race-neutral reason. The prosecutor presented to the court that Mr. Holliday had been prosecuted by the Jackson County prosecutor's office, which was a race-neutral reason.
Venireperson L.W.: “[Venireperson L.W.] marked F on her questionnaire. Also, her answers, religiously she said she would be very hesitant [to impose the death penalty].”
[5] [6] [7] The trial court judge is obligated to apply a three-pronged analysis in assessing the explanations provided by the prosecutor. State v. Antwine, 743 S.W.2d 51, 64–65 (Mo. banc 1987). Trial judges must evaluate the susceptibility of the particular case to racial discrimination, the prosecutor's demeanor and, finally, the judge must evaluate the explanation itself. Id. at 65. Crucial to the analysis is whether similarly situated white venirepersons escaped the state's challenge. Id. See also State v. Weaver, 912 S.W.2d at 509. Here, after the prosecutor gave these race-neutral reasons, the trial judge made a preliminary ruling regarding Batson challenges and gave defense counsel time to examine the questionnaires and determine if the record needed to be supplemented as to the Batson challenges.FN9 When a prosecutor articulates a race-neutral reason for a strike, the burden shifts to the defendant to show that the state's explanation was merely pretextual and that the strike was racially motivated. State v. Elder, 901 S.W.2d 87, 90 (Mo.App.1995). Taylor did not assert that there were white venirepersons on the panel who were similarly situated to O.S. and L.W. Defendant failed to establish that the State's justification for striking these venirepersons was mere pretext. See also State v. White, 941 S.W.2d 575, 582 (Mo.App.1997).
FN9. Defense counsel did not object to this procedure of supplementing the record regarding Batson challenges after the prosecutor was able to state its reasons after each venireperson. At this time, the judge asked the defense counsel how much time would be needed, and he responded that two hours would sufficient.
[8] As to the other four prospective jurors, Taylor asserted similarly situated white venirepersons on the panel who were not struck. As to Venireperson E.K., defense counsel asserted that Venireperson D.R., a white male, also marked E FN10 on his questionnaire. However, the prosecutor noted that the two were different in that Venireperson D.R. hesitated in his answer about the death penalty and gave pros and cons regarding when it was appropriate, whereas, Venireperson E.K. did not have any hesitation in answering questions regarding her view on the death penalty.
FN10. The answer marked E stated, “I am generally against the death penalty, but I believe I can put aside my feelings ...”
[9] Defense counsel asserted that Venireperson T.J. marked F on her questionnaire and referred to a multiple homicide case, had two brothers who were convicted, and had a cousin on trial. A similarly situated white male, Venireperson C.K., was not struck even though he made reference to famous murderers Ted Bundy and John Gacy and had a brother in prison. Venireperson C.K. marked D FN11 on the questionnaire.
FN11. The answer marked D stated, “I can vote for the death penalty if it is appropriately based on the facts and the law ...”
Counsel next asserted that Venireperson C.S., who marked a D and an E on the questionnaire and knew two attorneys, was similarly situated to Venireperson J.T., a white female, who marked E on the questionnaire and whose husband was a friend of an attorney.
The next prospective juror that defense counsel compared was B.B., who said she had seen the results of someone being abused and the case would have to be extreme for the death penalty to be imposed. B.B. was compared to Venireperson C.K., supra, who stated that he had witnessed fights between his parents.
Up to this point it is clear that the prosecutor gave race-neutral reasons with distinctions regarding the white venirepersons and the black venirepersons struck. See State v. Weaver, 912 S.W.2d 499 (Mo. banc 1995) (hesitancy in answering questions is a race-neutral reason); State v. Brown, 998 S.W.2d 531 (Mo. banc 1999)(striking venireperson convicted of a felony is race-neutral reason); State v. Smulls, 935 S.W.2d 9, 18 (employed by or related to attorneys survives a Batson challenge); State v. Turner, 921 S.W.2d 658 (Mo.App.1996) (venireperson struck because a family member was in prison is a race-neutral reason); State v. Dunn, 906 S.W.2d 388 (Mo.App.1995). However as to Venireperson B.B., there was extensive discussion by the trial court judge and the attorneys regarding whether witnessing abuse was race-neutral when there were several white venirepersons who had witnessed some form of abuse. Ultimately, after looking at all the factors the trial court judge denied the challenge.
Counsel compared Venireperson B.B. to Venireperson P.A., who stated she knew many women who had been sexually assaulted, to Venireperson J.D., who stated that one time she saw her brother-in-law grab her sister, and to Venireperson R.H., who stated she had an abusive husband and she had sought an order of protection. The trial court judge recognized that the white venirepersons all witnessed abuse and were not struck by the state. The trial court judge reviewed Venireperson B.B.'s transcript and noted “she definitely made some pretty pointed statements that show hesitation....” Defense counsel agreed with the trial court judge's assertion that hesitancy towards the death penalty is on its face a race-neutral reason. This Court has held that a venireperson's hesitation in answering questions regarding the death penalty will survive a Batson challenge. See State v. Weaver, 912 S.W.2d, 499 (Mo. banc 1995), and State v. Morrow, 968 S.W.2d 100 (Mo. banc 1998). The trial court judge further stated, “I find it personally troublesome, the prospect of having in a death penalty case with a black defendant having an all white jury ... I think that a race-neutral reason has been established.”
[10] Batson requires evaluating each stricken African–American venireperson on an individual basis as to whether the stated reason was race-neutral and not a pretext for discrimination. Taylor argues this process prohibited the judge from looking at the totality of the circumstances as this Court has prescribed in Antwine, 743 S.W.2d 51, and State v. Parker, 836 S.W.2d at 939. We disagree.
[11] At the outset, it is important to note, the trial court judge continually asked the attorneys how each side wanted to proceed in regard to Batson. Defense counsel made no objection to the proceedings as long as he could “supplement the record,” as he was allowed to do. Taylor is correct that trial court judges should take into account a variety of factors. As we stated in Parker and Antwine, “the chief consideration should be the plausibility of the prosecutor's explanations in light of the totality of the facts and circumstances surrounding the case.” Parker, 836 S.W.2d at 939; Antwine, 743 S.W.2d at 65.
Taylor directs this Court to a federal court of appeals case where the trial court judge, according to Taylor, used a similar procedure during voir dire. There the appeals court found a prima facie case of discrimination. Coulter v. Gilmore, 155 F.3d 912(7th Cir.1998) In Coulter the trial judge looked “only in an isolated way at individual venirepersons and individual reasons.” Although not controlling or binding on this Court, Coulter is distinguishable based upon the procedure used by the trial court.
A comparison of Coulter to the present case is helpful in demonstrating how the trial judge here did follow the law in Batson and our cases, Parker and Antwine. In Coulter, the government used nine peremptory challenges to strike African–Americans from the jury venire; it also struck one non-African-American venireperson and left its four remaining challenges unexercised. For each peremptory challenge, and before a Batson challenge was raised by defense counsel, the state court instructed the government to state its reasons for the strike. These strikes prompted Coulter's attorney to move three times for a mistrial on the ground that Batson had been violated. These were denied.
The Illinois state appellate court initially remanded the case “for clarification of the record concerning the jury selection procedure ...” because the record was unclear regarding the judge's rulings, other comments or considerations, and his role during voir dire.
On remand, the trial judge conceded that there was nothing in the previous record that explained what the judge himself was doing at the time. The judge not only refused to allow Coulter's lawyer to conduct further discovery or otherwise supplement the record, but he also denied an express request from the lawyer to make an offer of proof. The Illinois appellate court criticized the trial court's decision to require the state to give its reasons for challenging each venireperson before the defendant raised a Batson issue, recognizing that this procedure impeded clear analysis of the issues.
The seventh circuit court of appeals in Coulter stated, “The state judge made those findings without ever taking into account the totality of the circumstances on the record; instead, he looked only in an isolated way at individual venirepersons and individual reasons, and even in that setting he overlooked remarkable similarities between the excluded African–Americans and the non-excludable Caucasians.” Additionally, the seventh circuit criticized the “juror-by-juror” inquiry that the trial judge conducted, unsupplemented by any final look at the record as a whole, despite counsel's efforts to present this evidence. The court noted this procedure “practically guaranteed the conclusion that the prosecution was acting race neutrally.”
The procedure used by the trial court judge in this case is clearly distinguishable from the procedure in Coulter. The trial court judge here did a commendable job in making the record clear and understandable. Both parties agreed to the procedure. Further, the trial court judge did not allow the state to give its reasons for striking a prospective juror before a challenge was made. After the state gave its peremptory strikes, the trial court judge allowed defense counsel “as much time as needed” to look through the questionnaires in order to supplement the record regarding similarly situated white venirepersons. Defense counsel was then able to make a complete record of prospective jurors who were similarly situated before the trial judge gave a final ruling on the Batson issue.
The trial judge here also took a very active role. He took several notes for each venireperson and reread transcript answers to supplement his notes. His comments throughout the jury selection demonstrate that he was looking at relevant factors, the evidence, and the totality of the circumstances:
Court: “I'd like to do [the challenges] one at a time. I wanted to see the whole picture, but I think we ought to take them up one at a time, unless you have an objection otherwise.” FN12
FN12. This was in response to the trial court's having heard that six of the African–Americans were struck by the state.
Court: “The Defendant cannot really fully consider the information in response to Batson records because they didn't know who the strikes were until the state announces their strikes ... you'll know what their reasons are and then you can make a rebuttal in one shot with the ability to carefully review those documents.”
Court: “Don't you think ... when you're making strikes for the state and someone shows a pronounced hesitation regarding the death penalty ... and I think Ms. B.B. fits this category—I even reviewed her transcript, she made pointed statements that show hesitation. Isn't that in and of itself a race-neutral reason? I feel for your situation ... we have expanded voir dire and it creates a lot of information ... probably makes it easier for the state to find a race-neutral reason.”
Court: “I find it personally troublesome, the prospect of having in a death penalty case with a black defendant having an all white jury ... I'm not sure intellectually I'm comfortable with the situation, but I think it's pretty clear it's [race neutral reason] met.”
Additionally, in the court's order denying defendant's motion for acquittal or new trial, the trial court stated:
“In complete candor, this Court finds it ... morally and intellectually troublesome the concept that a black defendant in Jackson County, Missouri, could be sentenced to death based upon the recommendation of an all white jury.”
These statements demonstrate the trial judge was sensitive to the Batson issues and was aware of the surrounding circumstances. The trial court judge does not ultimately have to use the words “totality of the circumstances” to comply with Batson. If the record is clear that the trial judge looked at the totality of the circumstances, then this Court will not disturb the trial court's decision. Here the trial judge looked at the “whole picture,” was aware that defendant was black and the jury members were white, and gave defense counsel ample time and discretion to supplement the record.
Finally, the trial judge was presented with evidence of similarly situated white venirepersons. The crucial and determinative inquiry in a Batson claim is whether the state has treated similarly situated venirepersons differently based on race. See State v. Roberts, 948 S.W.2d 577, 602 (Mo. banc 1997).
a. Pattern of Strikes As Indicative of Pretext.
Taylor suggests that the trial court judge in failing to look at the totality of circumstances did not consider the pattern of strikes in determining whether there was a discriminatory motive. The record does not support Taylor's contention.
[12] [13] While evidence of a pattern of strikes against African–Americans can be indicative of racially motivated peremptory challenges, that is not the case here. See Batson, 476 U.S. at 97, 106 S.Ct. 1712. The prosecutor in this case used six of eleven peremptory challenges to strike all of the African–Americans sitting on the panel. As this Court stated in State v. Griffin, the state is not required to adhere to a specific mathematical formula in the exercise of its peremptory challenges. 756 S.W.2d 475, 482 (Mo. banc 1988).FN13 In Griffin, the defendant pointed to no particular conduct on the part of the prosecutor that indicated racial motivation for his peremptory challenges except that the prosecutor used half of his strikes against African–Americans. Taylor fails to demonstrate a pretextual motive for the peremptory strikes by the prosecutor. Even if the reasons given by the prosecutor result in the use of strikes against African–Americans more often than against white venirepersons, the strikes will not violate Batson without some showing that the prosecutor removed the potential venireperson “because of” their race. Devoil–El v. Groose, 160 F.3d 1184 (8 th Cir.1998) (In Devoil–El, the defendant argued that the trial judge did not look at the totality of the circumstances and, thus, erred because he evaluated each strike individually instead of looking at the pattern of strikes.)
FN13. The Court does not mean to discredit statistical studies, and in some cases statistical support will be persuasive and useful, especially where the prosecutor has articulated very weak race-neutral reasons or from other surrounding circumstances, such as the prosecutor's prior conduct at death penalty trials.
In the present case we recognize the superior vantage point occupied by the trial judge. He was able to view the panel members; listen to their responses; analyze and supervise the statements and questions made by the prosecutor during voir dire; and evaluate the reasons the prosecutor offered for exercising his peremptory challenges as he did. The trial judge found no discriminatory exclusion. Upon review of the record, we find no statements or questions by the prosecutor or any other relevant circumstances to support an inference of discrimination. The defendant has failed to show purposeful discrimination.
b. McCleskey v. Kemp Does Not Apply to Batson Challenges.
Taylor asserts that the trial judge erred in applying McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), to his Batson challenges. McCleskey is significant in regard to Taylor's second issue discussed infra, regarding the prosecutor's discretion in choosing to pursue the death penalty for this crime committed by Taylor.
Taylor argues that because the trial court judge's order “Denying Defendant's Motion for Acquittal and New Trial” discusses McCleskey under the heading “Batson Issues,” the correct Batson standard was not applied. The record in both the trial transcript and the order refutes this assertion. After the defendant made his objections under Batson, the trial judge stated:
“[it] has been called to my attention, number 1, I definitely need the race-neutral reasons. I believe I think the case should stand for the proposition that I should make findings and, further, stand for the proposition that the defendant should have a right to make a rebuttal argument before the ruling is made permanent ... I'm in compliance with that case [Batson].”
The court's order does address McCleskey, but only after the court completed its discussion on its reasons for denying the Batson challenges.
The judge discussed McCleskey in the context of the jury selection procedure as a whole, the death qualifying process, and his moral beliefs as to disparate treatment of black defendants. His discussion did not misdirect his decisions on Batson challenges. The judge cited McCleskey for its statistical studies and other data suggesting the death penalty creates a disparate impact on people of color, especially in circumstances where there is a black defendant and a white victim. See McCleskey at 285–292, 107 S.Ct. 1756. In McCleskey, the Supreme Court stated the statistics were not clear and sufficient proof for an equal protection violation. But this, again, demonstrates the judge was aware of surrounding circumstances and sensitive to defendant's claims. The judge in this case did not use the wrong standard in denying the Batson challenges.
III. Prosecutorial Discretion in Seeking the Death Penalty
[14] Taylor's next point raises two issues. First, he alleges an equal protection violation and an eighth amendment violation FN14 by asserting that the decision to seek the death penalty was the product of racial discrimination by the prosecutor's office in that black defendants charged with murder are more likely than white defendants to face the possibility of the death penalty. Second, he challenges the prosecutor's broad discretion and claims the prosecutor discriminated against him specifically when seeking the death penalty.
FN14. Taylor's brief addressed an eighth amendment violation in passing, noting that in Furman v. Georgia, the Supreme Court held that it was cruel and unusual punishment to sentence someone to death if the punishment is meted out arbitrarily and capriciously. 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Under section 565.035.3, this Court reviews each death penalty case to ensure that the sentence was not given arbitrarily. See section VII., infra.
To establish an equal protection violation, Taylor directs this Court to statistics demonstrating a disparity between black and white defendants and other defendants with similar crimes who were offered life without parole.
These assertions have been rejected by this Court in State v. Mallett 732 S.W.2d 527 (Mo. banc 1987), and State v. Taylor, 929 S.W.2d 209 (Mo. banc 1996). Mallett specifically relied on McCleskey v. Kemp to determine that statistics alone would not be enough to prove an equal protection violation. In McCleskey, the United States Supreme Court held that “statistics indicating a disparate impact seldom suffice to establish an equal protection claim.” State v. Mallett, 732 S.W.2d 527, citing McCleskey v. Kemp, 481 U.S. 279, 290, 107 S.Ct. 1756, 95 L.Ed.2d 262.
[15] To establish an equal protection violation, a defendant must show an intent to discriminate. Mallett, 732 S.W.2d at 538. Here, in addition to statistics, Taylor presents evidence that in other murder cases the prosecutor did not seek the death penalty but either allowed the defendant to plead guilty and receive life in prison or that life imprisonment was the punishment that the prosecutor sought at trial. This is insufficient evidence for an equal protection violation.
[16] [17] [18] Prosecutors are given broad discretion in seeking the death penalty. See section 535.030. A prosecutor's broad discretion does not extend to decisions deliberately based on unjustifiable standards such as race or some other entirely arbitrary factor. Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). Taylor must prove both the prosecutor's decision had a discriminatory effect on him and it was motivated by a discriminatory purpose. As the Supreme Court stated in McCleskey, “because discretion is essential to the criminal justice process,” the Court demands “exceptionally clear proof” before it will infer that the discretion has been abused. 481 U.S. at 297, 107 S.Ct. 1756 and Mallett, 732 S.W.2d at 539. Prosecutors must look at a variety of factors including statutory aggravating circumstances, the type of crime, the strength of the evidence and the defendant's involvement in the crime in deciding whether to seek the death penalty. Taylor does not present “exceptionally clear proof” the prosecutor's office arbitrarily seeks the death penalty for black defendants or for him in particular.FN15
FN15. Taylor also contends that in closing argument the prosecutor made comments directed at his right not to testify. Trial counsel is entitled to wide latitude in making a summation. State v. Mahurin, 799 S.W.2d 840 (Mo. banc 1990). This claim was not properly preserved and no plain error exists. The prosecutor's statements at best, raise a weak inference on Taylor's right to not testify.
IV. Victim Impact Evidence is Admissible
[19] Taylor alleges that the trial court erred in overruling his objections to the testimony of Sarah Yates as improper victim impact evidence. This Court has consistently held that victim impact evidence is proper and admissible as long as it is not “so unduly prejudicial that it renders the trial fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); State v. Roberts, 948 S.W.2d 577 (Mo. banc 1997); State v. Gray, 887 S.W.2d 369 (Mo. banc 1994). Victim impact evidence is another form or method of informing the court about the specific harm caused by the crime in question. State v. Worthington, 8 S.W.3d 83 (Mo. banc 1999).
[20] Here, the only victim impact evidence presented during the penalty phase came from Astrid Newton, the victim's wife, and Sarah Yates, the victim's stepdaughter.FN16 Ms. Yates testified that she considered Robert Newton her father and called him “daddy.” She testified about her relationship with Robert Newton. Ms. Yates also described the attack against her father and her actions thereafter including saying a long prayer over his body. The victim impact evidence here was relevant and admissible to inform the court of the impact Mr. Newton's death had on his family. See section 565.030.4 and cases cited supra.
FN16. Taylor had nine mitigation witnesses to testify to his background and childhood. There were more than 150 pages of transcript from these witnesses compared to thirteen pages from Ms. Yates.
V. Trial Judge can Find Prior Convictions to be “Serious” and “Assaultive.”
[21] [22] Taylor objected to Instruction Number 6 because it listed Taylor's prior convictions and did not require the jury to find whether Taylor had one or more serious assaultive convictions.FN17 The trial court overruled the objection, finding that the submission of individual convictions was consistent with MAI–Cr3d 313.40 and the Notes on Use.FN18 MAI–CR3d 313.40 is the penalty phase instruction submitting statutory aggravating circumstances. The trial court found the convictions of second degree murder, attempted robbery in the first degree, and robbery in the first degree to be serious assaultive convictions. The procedure employed here, in conformance with the MAI and accompanying notes, detracts in no way from the function of the trier of fact. The court must determine as a matter of law whether the prior convictions are “serious assaultive criminal convictions,” and then the jury is allowed to determine as a matter of fact whether defendant indeed had prior convictions of second degree murder, attempted robbery, and robbery. In State v. Parkus, 753 S.W.2d 881 (Mo. banc 1988), the trial judge did not make the findings on the record but there was other evidence presented regarding the conviction. In this case we do not reach the merits of whether other evidence of the convictions is required to comply with the statute because the jury found “at least one” other aggravating circumstance. See State v. Ramsey, 864 S.W.2d 320 (Mo.1993). The jury found as an aggravating circumstance, in addition to his prior convictions, that Taylor murdered Newton for the purpose of receiving money or any other thing of monetary value from Robert Newton or another. The aggravating circumstances found by the jury were valid, however; even if the first three aggravating circumstances were invalid, the proceedings were not tainted so as to invalidate the other aggravating circumstance found and the death sentence imposed. See State v. Sidebottom, 781 S.W.2d 791, 799 (Mo. banc 1989). A death sentence will be affirmed if even one valid statutory aggravating circumstance is found. State v. Sloan, 756 S.W.2d 503, 509 (Mo. banc 1988). The trial court did not err.
FN17. Instruction No. 6 read, in pertinent part, as follows:
In determining the punishment to be assessed against the defendant for the murder of Robert Newton, you must first unanimously determine whether one or more of the following statutory aggravating circumstances exists:
1. Whether the defendant was convicted of Murder in the Second Degree on July 31, 1979....
2. Whether the defendant was convicted of Attempted Robbery in the First Degree on June 1, 1982....
3. Whether the defendant was convicted of Robbery in the First Degree on July 30, 1985....
4. Whether the defendant murdered Robert Newton for the purpose of the defendant receiving money or any other thing of monetary value from Robert Newton or another.
5. Whether the murder of Robert Newton was committed for the purpose of avoiding a lawful arrest of defendant.
You are further instructed that the burden rests upon the State to prove at least one of the foregoing circumstances beyond a reasonable doubt....
Therefore if you do not unanimously find from the evidence beyond a reasonable doubt at least one of the foregoing statutory aggravating circumstances exist, you must return a verdict fixing the punishment of the defendant at imprisonment for life by the Department of Corrections without eligibility for probation or parole.
FN18. The structure of our death penalty statute implicitly requires each statutory aggravating circumstance be submitted separately because once a jury finds one aggravating circumstance, it may impose the death penalty. Separation of such prior convictions permits the jury to consider the death sentence if any one of several convictions is found to exist. State v. Shaw, 636 S.W.2d 667 (Mo. banc 1982). By separating the prior convictions, any potential jury confusion is eliminated. State v. Ramsey, 864 S.W.2d 320 (Mo.1993).
VI. No Double Jeopardy Violation for Submitting Aggravating Circumstance FN19
FN19. Taylor asserted that the trial court erred in not submitting non-statutory mitigating factors. Taylor submitted a non-MAI instruction proposing to include non-statutory mitigating circumstances. The trial court rejected the proposed instruction for MAI-CR 3d 313.44A. This court has held that non-statutory mitigating circumstances do not have to be listed and are not required. State v. Deck, 994 S.W.2d 527, 539 (Mo. banc 1999) and State v. Parker, 886 S.W.2d 908, 928-929 (Mo. banc 1994).
Taylor also objected to Instruction 6 because it submitted aggravating circumstances that the previous trier, Judge Mauer, had found not to exist. FN20 He asserts that the state should have been collaterally estopped from submitting this aggravating circumstance since the first trier of fact did not find it. He also alleges that the submission constituted double jeopardy. In the first proceeding Judge Mauer did not recite that the aggravating circumstance “defendant murdered Newton for the purpose of receiving money or taking other thing of monetary value from Robert Newton or another” was not proven beyond a reasonable doubt as he did for the fifth aggravating circumstance “avoiding a lawful arrest.” Instead, Judge Mauer asserted that it was not applicable to the case because a different MAI paragraph should have been used. This same argument was rejected in State v. Simmons, 955 S.W.2d 752 (Mo. banc 1997). See also Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986).
FN20. During Taylor's first trial, the jury could not agree on punishment, thus Judge Mauer became the trier of fact.
[23] Taylor asserts that the death penalty statute is unconstitutional. This argument has been rejected. Our death penalty statute is constitutional. See State v. Worthington, 8 S.W.3d 83 (Mo. banc 1999) ; State v. Mercer, 618 S.W.2d 1 (Mo. banc 1981); State ex rel. Davis v. Shinn, 874 S.W.2d 403 (Mo.App.1994).
VII. Proportionality Review
Section 565.035.3 requires this Court to conduct an independent review of a defendant's death sentence. The Court must decide whether the death sentence is excessive and disproportionate to other similar cases, whether the evidence supports the jury's findings of an aggravating circumstance, and whether the sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor.
After careful review of the record and transcript, this Court finds that the sentence of death imposed on Mr. Taylor was not imposed under the influence of passion, prejudice or any other arbitrary factor. In this case, the jury found two aggravating circumstances, which consisted of murder for monetary gain and the offense was committed by a person who has one or more serious assaultive criminal convictions. See section 565.032.
[24] The evidence supports the findings. Considering the crime, the strength of the evidence, and the defendant, this Court finds the facts of this case are consistent with death sentences affirmed wherein victims were murdered in course of a robbery. See e.g., State v. Jones, 979 S.W.2d 171 (Mo. banc 1998); State v. Barnett, 980 S.W.2d 297 (Mo. banc 1998); State v. Simmons, 955 S.W.2d 752 (Mo. banc 1997); State v. Laws, 661 S.W.2d 526 (Mo. banc 1983); State v. Gilmore, 697 S.W.2d 172 (Mo. banc 1985); State v. Kreutzer, 928 S.W.2d 854 (Mo. banc 1996); State v. Tokar, 918 S.W.2d 753 (Mo. banc 1996); State v. Ramsey, 864 S.W.2d 320 (Mo. banc 1993).
VIII. Conclusion
For the foregoing reasons, the judgment is affirmed.
All concur.
Taylor v. State, 126 S.W.3d 755 (Mo. 2004). (PCR)
Background: Defendant was convicted in the Circuit Court, Jackson County, William F. Mauer, J., of capital murder, robbery, assault, and armed criminal action, and he received death penalty plus 315 years. The Supreme Court, 944 S.W.2d 925, affirmed convictions but remanded for resentencing for capital murder. On remand, defendant was again sentenced to death, and the Supreme Court, 18 S.W.3d 366, affirmed. Defendant then filed motion for post-conviction relief. The Circuit Court, Jackson County, Charles Atwell, J., denied motion, and defendant appealed.
Holdings: The Supreme Court, William Ray Price, Jr., J., held that:
(1) defendant did not receive ineffective assistance of counsel on resentencing, and
(2) death sentence was not disproportionate to offense. Affirmed.
WILLIAM RAY PRICE, JR., Judge.
I.
Leon Taylor was initially convicted of first-degree murder, first-degree robbery, first-degree assault, and armed criminal action and was sentenced to death on the first-degree murder charge and life imprisonment plus 315 years for the other charges. This Court affirmed the convictions but granted a new penalty phase trial on the murder charge. In the second penalty phase trial, the jury assessed the death penalty and Taylor was so sentenced. This Court affirmed. Taylor filed a Rule 29.15 motion and, in a detailed 42–page order, the trial court denied relief. This Court has jurisdiction. Mo Const. art. V, section 10; standing order, June 16, 1988. The judgment is affirmed.
II.
A.
On April 14, 1994, Leon Taylor, along with his half brother and half sister, robbed a gas station in Jackson County.FN1 During the robbery, without any particular cause, Taylor shot and killed the gas station attendant while the victim's stepdaughter watched. After shooting the attendant, Taylor turned the gun on the stepdaughter and pulled the trigger. The gun, however, jammed and did not discharge. Frustrated, Taylor locked the young girl in the back room and returned to the car to obtain another gun with which to shoot her. Fortunately, Taylor's half brother and half sister convinced him to leave.
FN1. For a more detailed recitation of the facts, see State v. Taylor, 944 S.W.2d 925, 930 (Mo. banc 1997), and State v. Taylor, 18 S.W.3d 366, 369 (Mo. banc 2000).
Taylor was tried and convicted of first-degree murder, first-degree assault, first-degree robbery and three counts of armed criminal action. The jury could not agree upon punishment for the murder conviction. The trial judge sentenced Taylor to death. This Court affirmed the convictions but remanded for a new sentencing phase on the murder conviction, based on the prosecutor's improper closing argument which urged the jury to decide the case based on emotion. State v. Taylor, 944 S.W.2d 925 (Mo. banc 1997).
A new sentencing proceeding was held and a jury assessed punishment at death. This Court affirmed. State v. Taylor, 18 S.W.3d 366 (Mo. banc 2000). Taylor sought post-conviction relief in the form of a motion to vacate judgment and sentence pursuant to Rule 29.15. Taylor alleged ineffective assistance of counsel. The motion was overruled, and Taylor appealed to this Court.
B.
In the second penalty phase, Taylor was represented by Robert Wolfrum and Teoffice Cooper. The motion court noted that both of these attorneys “are experienced lawyers with substantial training in handling death penalty cases.” Prior to the second penalty phase, both attorneys had the chance to consult with Taylor's counsel from the first trial, whom the motion court noted “were also experienced death penalty litigators.” Wolfrum testified that he has been handling capital cases exclusively since 1989. Both Wolfrum and Cooper have had experience in capital litigation throughout the state of Missouri. Currently Wolfrum supervises a group of attorneys in St. Louis who all handle death penalty litigation.
At the 29.15 hearing, Wolfrum was called to testify, but Cooper was not. Cooper is presumed to have undertaken adequate investigation and made adequate strategic decisions. Taylor has failed to carry his burden of proof regarding his allegations of Cooper's ineffective assistance of counsel. See, State v. Tokar, 918 S.W.2d 753, 768 (Mo. banc 1996), cert. denied, 519 U.S. 933, 117 S.Ct. 307, 136 L.Ed.2d 224 (1996).
C.
[1] [2] The standard of review for claims of ineffective assistance of counsel is well settled in this state. “[W]e look to whether appellant has established below that his counsel's performance failed to conform to the degree of skill, care, and diligence of a reasonably competent attorney, and that the defendant was thereby prejudiced.” State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Storey, 901 S.W.2d 886, 900 (Mo. banc 1995); State v. Wise, 879 S.W.2d 494, 524 (Mo. banc 1994)). The appellant has the burden of proving prejudice by showing a “reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.” Id.
[3] [4] [5] In addition, a strong presumption exists that counsel was effective, which appellant must overcome by a preponderance of the evidence. Id. In examining appellant's claims of ineffective assistance of counsel, this Court should give deference to the decisions made by appellant's counsel. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.
[6] [7] “Strategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable.” Tokar, 918 S.W.2d at 761 (citing Strickland, 466 U.S. at 690–91, 104 S.Ct. 2052). Among the relevant factors for deciding whether particular strategic choices are reasonable is “the potential for prejudice from taking an unpursued line of defense.” Strickland, 466 U.S. at 681, 104 S.Ct. 2052.
[8] Appellate review of the motion court's findings of fact and conclusions of law on a Rule 29.15 motion is limited to a determination of whether the findings and conclusions are clearly erroneous. Rule 29.15(k); see State v. Kenley, 952 S.W.2d 250, 266 (Mo. banc 1997). Findings of fact and conclusions of law are clearly erroneous only if after a review of the whole record, the Court is “left with a definite and firm impression that a mistake has been made.” State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996).
III.
A.
[9] Taylor first alleges he was denied effective assistance of counsel because his counsel in the second penalty phase failed to investigate, rebut and object to the prosecutor's suggestion that Taylor had stabbed a man to death in 1975. See State v. Hardin, 558 S.W.2d 804 (Mo.App.1977). The prosecutor's comment arose from a second-degree murder conviction, to which Taylor pled guilty, for the death of Jessie Howarter, who died as a result of 16 stab wounds. Taylor asserts that he pled guilty to stabbing at Howarter's side, but he was unsure whether he inflicted any wounds and that if he did, the wounds he inflicted did not cause Howarter's death. “Taylor either stabbed or attempted to stab Howarter.” Id. at 806.
Rather, Taylor argues, his codefendant, Carl Hardin, was the one who stabbed Howarter to death. Taylor submits that the state cannot rely on his testimony that he did not inflict the fatal wounds to convict Carl Hardin and then later argue Taylor “stabbed a man to death” to show he was a prior offender. Taylor argues the prosecution's comments were prejudicial and, as a result, his counsel should have objected.
[10] At Taylor's 29.15 hearing, Wolfrum testified that he had read the police reports related to the incident as well as the information from the Hardin case. He also testified that he was aware that the state was allowed to read the information to the jury, which included Taylor's confession to stabbing at Howarter's side.FN2 Wolfrum further acknowledged he was aware that under Missouri law, an accomplice is as guilty as the principal of the crime. See generally State v. Wurtzberger, 40 S.W.3d 893, 895 (Mo. banc 2001).
FN2. An exhibit at the Hardin trial also showed that the bloodstains on Howarter's shirt, Taylor's pants, and the butcher knife that was used to murder Howarter all matched.
Wolfrum also testified that prior to the second penalty phase trial he was aware that the state would rely heavily upon the conviction and that he had strong feelings that the conviction would be damaging to Taylor's case. Wolfrum testified that he was also concerned about how the jury would react to the fact that Taylor had testified against Hardin. The motion court noted that both Wolfrum and Cooper spent substantial time prior to the second penalty phase trial advocating for specific voir dire procedures that would touch upon the prior murder conviction. As a result, each juror at the second penalty phase was subject to individual voir dire on the subject of Taylor's prior murder conviction.
The motion court found Wolfrum's testimony at the 29.15 hearing indicated that he and his co-counsel did not object to the prosecutor's references to the prior conviction because they felt that “objecting excessively to the evidence of the murder conviction could unduly emphasize what they considered to be damaging evidence.” As a result, they decided it was better trial strategy not to object.
Taylor had pled guilty to second-degree murder as a result of stabbing at Howarter. In addition, the medical examiner in the case substantiated the existence of a flank wound that corroborated Taylor's testimony. Whether or not he inflicted the fatal wound, he participated in a violent assault that left a man dead. If Taylor's counsel had objected to the prosecutor's statements, they would have been drawn into the details of Howarter's death to provide the context for Taylor's testimony that he did not inflict the fatal stab wound.
Given that Howarter suffered 16 stab wounds and evidence existed that Taylor participated in the attack, it is not unreasonable that Taylor's counsel would choose to ignore the prosecutor's statement rather than exposing the jury to more gory details of the murder. Moreover, as the motion court noted, an effort by Taylor to trivialize the prior murder plea and conviction in the brutal circumstances of that case could have been “problematic.”
[11] This Court is to give deference to the decisions made by appellant's counsel. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. “There is a presumption that counsel's alleged omissions were sound trial strategy.” Tokar, 918 S.W.2d at 766 (citing Sidebottom v. State, 781 S.W.2d 791, 795 (Mo. banc 1989)). Taylor's counsel made a strategic decision to avoid putting emphasis on the details of Taylor's previous murder conviction so as not to damage his case. The evidence shows that Wolfrum made a sufficient investigation into the facts surrounding the conviction as well as the law regarding accomplice liability. As mentioned, “[s]trategic choices made after a thorough investigation of the law and facts relevant to plausible opinions are virtually unchallengeable.” Id. at 761. Taylor's counsel's performance met the degree of skill, care, and diligence of a reasonably competent attorney. Id.
[12] Likewise, Taylor has failed to show “a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.” Id. Rather, the evidence shows that if Wolfrum or Cooper had objected and the details of the previous murder were revealed to the jury, it is likely Taylor's case would have been harmed and the outcome would have been the same. The motion court was not erroneous, clearly or otherwise, when it denied Taylor's motion on this point.
B.
[13] Taylor next alleges he was denied effective assistance of counsel because his attorneys failed to investigate and present evidence of his mental state at the time of the robbery and murder. Specifically, Taylor argues Dr. William Logan should have been called to establish the statutory mitigators of extreme mental or emotional disturbance and substantial impairment of Taylor's capacity to appreciate the criminality of his conduct.
At the 29.15 hearing, Wolfrum testified that he and his co-counsel hoped to get the jury to think of Taylor as a victim of his disadvantaged background and to avoid focusing on specific details at the time of the crime. Wolfrum testified that they hired Dr. Robert Smith, a forensic and clinical psychologist, to evaluate Taylor. Dr. Smith's report contained findings similar to Dr. Logan's. As the motion court noted, “A very substantial part of the important information utilized by Dr. Logan and Dr. Smith was the same information that was presented by counsel to the jury during the course of the retrial of the penalty phase.” Dr. Smith's report found that Taylor had alcohol dependence, cannabis dependence, post-traumatic stress disorder, dysthymic disorder, and mixed personality disorder with antisocial and paranoid features.
Wolfrum testified, however, that they specifically avoided having Dr. Smith testify about Taylor's mental state at the time of the murder because they felt that tying his family history to the events of the night of the crime would have been problematic. Instead, Wolfrum testified that he and his co-counsel also retained Robert Dempsey, a psychiatric and clinical social worker and therapist, who testified regarding the fact that Taylor's family life affected his ability to make reasoned and good choices. The testimony of both of these professionals was presented at the second penalty phase to establish that Taylor was a victim of his circumstances.
This line of defense was supplemented by the testimony of Taylor's relatives, friends of Taylor's relatives, a former judge, and a police officer. Penalty phase counsel also presented evidence that Taylor's mother had abused him, stabbed and shot others, and was a chronic alcoholic who drank while Taylor was in utero and gave him alcohol as a child. Penalty phase counsel presented evidence that Taylor never received guidance about what was right and wrong and that he was sexually abused when he was five years old. In addition, counsel presented evidence that Taylor suffered from depression when he was a teenager. All of this evidence was presented in a more general sense as mitigating evidence to show that Taylor was the victim of a troubled upbringing.
Again, Wolfrum stated he was aware of the possibility of presenting evidence similar to Dr. Logan's report regarding Taylor's mental state at the time of the murder but thought it was not a strong direction to pursue. Wolfrum noted that he and co-counsel chose not to include Dr. Logan's type of testimony because it might result in opening the door to damaging statements Taylor had made about the murder. As Wolfrum testified, “[I]f you put a doctor on, you're opening him up to some cross examination by the State that with hearsay they might find useful ... that's one danger that might not otherwise come in.” Dr. Logan testified at the 29.15 hearing that Taylor knew right from wrong, was able to appreciate the wrongfulness of his actions at the time of the murder, and the murder was not caused by post-traumatic stress disorder but may have been caused by Taylor's despondency and intoxication.
[14] “Generally, the selection of witnesses and the introduction of evidence are questions of trial strategy and virtually unchallengeable.” State v. Kenley, 952 S.W.2d 250, 266 (Mo. banc 1997). “[D]efense counsel is not obligated to shop for an expert witness who might provide more favorable testimony.” Id. at 268 (citing Taylor, 929 S.W.2d at 225; State v. Mease, 842 S.W.2d 98, 114 (Mo. banc 1992)).
It was not unreasonable trial strategy for Taylor's penalty phase counsel to attempt to establish that Taylor himself was a victim of a disadvantaged background. The testimony of Dr. Smith, Dempsey, and the other witnesses was presented toward this goal. Penalty phase counsel were not obligated to shop for another expert. Trial counsel also were not unreasonable in fearing that the adverse aspects of Dr. Logan's testimony might outweigh the usefulness of his other testimony and might refocus the jury on the brutal facts of the crime.
The motion court's finding on this issue was not erroneous, clearly or otherwise, when it denied Taylor's motion on this point.
C.
[15] Taylor next argues he received ineffective assistance of counsel because his penalty phase counsel failed to present evidence of his mental retardation. In support of this allegation, Taylor cites Dr. Logan's findings that Taylor's use of inhalants decreased his IQ by 10 points and placed him in the borderline mentally retarded range. Taylor argues that testimony regarding his mental retardation could have prevented him from receiving the death penalty because the Eighth Amendment precludes executing the mentally retarded. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
The state argues Taylor waived this claim by failing to raise it in his 29.15 motion. Taylor argues he pled this sufficiently by putting his mental state in issue as well as by pleading counsel's failure to call Dr. Logan at the penalty phase trial. At no point does Taylor's 29.15 motion mention “mental retardation.” He pled that his counsel failed to have Dr. Smith testify how “years of physical, emotional, and sexual abuse resulted in irreversible psychological damage to Leon which impacted his behavior on the night of the crime.” Likewise, he pled that his counsel failed to have a psychiatrist testify as to how his childhood affected his “adult mental health” and “ability to think cogently and rationally or to control his impulses.”
Finally, he pled that his counsel failed to present evidence that the emotional disappointments he suffered, the marijuana and alcohol he ingested, in addition to his post-traumatic stress disorder and depression, put him “under the influence of extreme mental or emotional disturbance” and “diminished [his] capacity” at the time of the crime. However, none of these pleadings amounts to a plea of failure to present evidence of mental retardation. Taylor did not specifically plead mental retardation.
[16] Nonetheless, even if Taylor had successfully pled the claim, evidence in the record does not support a finding that Taylor's counsel was ineffective in failing to pursue a defense based on mental retardation. First, Taylor failed to present any witness who would testify that he fit the definition of “mental retardation” set out in section 565.030.6.FN3 Second, Dr. Logan's testimony that Taylor's IQ fell to “borderline retarded” was only while he used chemical inhalants. Dr. Logan also testified that Taylor's IQ was in the “low normal range.” Finally, to emphasize the significance of this tenuous theory would require counsel to highlight that Taylor was acting under the voluntary influence of inhalants during the crimes. Evidence of substance abuse can be seen as an aggravating circumstance, rather than a mitigating circumstance; thus, it is reasonable for trial counsel to avoid such evidence to prevent damage to a defendant's case. See Kenley, 952 S.W.2d at 269. Taylor has not proven that his counsel's failure to pursue a claim of mental retardation was unreasonable.
FN3. Section 565.030.6 defines “mental retardation” as:
[A] condition involving substantial limitations in general functioning characterized by significantly subaverage intellectual functioning with continual extensive related deficits and limitations in two or more adaptive behaviors such as communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work, which conditions are manifested and documented before eighteen years of age.
565.030.6 RSMo Supp.2001 (emphasis added).
Along with Taylor's claim of ineffective assistance of counsel for failure to present evidence of his mental retardation, he alleges that because he was borderline mentally retarded at the time of the offense, the death penalty is disproportionate and unconstitutional. See Atkins, 536 U.S. at 304, 122 S.Ct. 2242. Because Taylor has failed to present any credible evidence in support of his claim that he was mentally retarded at the time of the offense, his sentence of death is not unconstitutional under Atkins.
[17] [18] Further, his sentence is not disproportionate to the offense. The evidence supports the jury's finding that Taylor was a person who has one or more serious assaultive criminal convictions, as he had previous convictions for second-degree murder, attempted robbery in the first degree, and robbery in the first degree. Section 565.032.2(1) (statutory aggravating factor for first-degree murder). The evidence also supports the jury's finding that Taylor committed the murder for the purpose of receiving money or anything of monetary value from the victim or another. Section 565.032.2(4) (statutory aggravating factor for first-degree murder). As this Court noted in Taylor's previous proceedings, “A death sentence will be affirmed if even one valid statutory aggravating circumstance is found.” Taylor, 18 S.W.3d at 378.
Finally, Taylor murdered a man, without cause, in front of the man's stepdaughter and then attempted to kill the girl as well. The imposition of the death penalty in such a circumstance cannot be said to be disproportionate. Tokar, 918 S.W.2d at 773.
Taylor has not presented any credible evidence to support this claim.
D.
[19] Taylor next alleges ineffective assistance of counsel for failure to investigate and present additional evidence through expert Dr. Smith that he suffered from depression, post-traumatic stress disorder, and alcohol and drug dependence. Taylor argues these establish the statutory mitigators of extreme mental or emotional disturbance and substantial impairment of capacity to appreciate the criminality of his conduct. Taylor argues this mitigation would have reduced his culpability and likely resulted in a life sentence. Taylor's argument here is closely related to the argument discussed in section III.B. above, and it simply focuses on additional testimony that might have been presented through Dr. Smith instead of Dr. Logan's testimony.
At the 29.15 hearing, Wolfrum testified that he met with Dr. Smith, read Dr. Smith's reports, and corresponded with him. He testified that he was aware of Dr. Smith's findings and potential for testifying concerning Taylor's mental health. He also testified that Dr. Smith requested a trauma system inventory (T.S.I.) test to examine Taylor for post-traumatic stress syndrome. Taylor's counsel provided Dr. Smith with the results of a T.S.I. that had been performed on Taylor in 1998, but Dr. Smith wanted to retest him. Taylor's counsel had Dr. Smith retest Taylor and send the results to counsel. Wolfrum further testified he would not have discouraged further investigation by Dr. Smith unless he had a strategic reason for believing it would be harmful. He testified that funding was not an issue.
Wolfrum stated further that he and co-counsel chose to present a defense that asked for mercy based on Taylor's life history, rather than one that focused the jury on the facts of the murder by arguing Taylor could not control his actions at that time because of mental diseases or defects. Counsel testified he could have presented evidence of mental illness through Dr. Smith, but he thought it was not a strong defense to pursue.
Additionally, Wolfrum stated there were a number of harmful statements made by Taylor to Dr. Smith that could have come in on cross-examination if they tried to blame the murder on mental diseases or defects. Penalty phase counsel's strategic choices as to this issue cannot be said to be unreasonable. The motion court was not erroneous, clearly or otherwise, in denying Taylor's motion on this point.
E.
[20] Taylor finally argues his counsel was ineffective for failing to present evidence of Taylor's good conduct in prison and positive influence on others. Taylor argues he reached out to others, writing words of encouragement and expressing remorse for his past misdeeds.
Wolfrum testified that he and his co-counsel chose not to present a lot of evidence of Taylor's good conduct in prison for strategic reasons. If they had presented evidence of Taylor's good conduct in prison, the state may have introduced rebuttal evidence of Taylor's misconduct. Taylor's own evidence at the 29.15 hearing showed that while in the custody of the Department of Corrections, he had numerous institutional violations for offenses including fighting, assault, forcible sexual misconduct, rioting (which resulted in the death of one correctional officer and injuries to four others), theft, fraud, disobeying orders, possession or use of controlled substances, giving false information, a sanitary violation, tampering with a locking device, being out-of-bounds, possession of contraband, and destroying state property. It is not unreasonable that Wolfrum and his co-counsel would choose to avoid having this information presented to the jury.
Nonetheless, Wolfrum stated that they did call at least one witness to testify about the positive effects Taylor had on her. However, because calling many similar witnesses would have required them to put other death row inmates on the stand, Wolfrum stated they did not call others because they did not want the jury to infer that Taylor had been on death row. Wolfrum stated that during retrials of penalty phases in these cases, the potential for a jury to infer that the defendant has already been on death row is something to “worry about.”
In addition, Wolfrum testified that they did not present evidence of Taylor's poetry for strategic reasons. He noted that prosecutors can easily belittle the positive nature of poetry by putting it up against the crime for which the defendant was convicted. Wolfrum said he and his co-counsel were very concerned about Taylor maintaining credibility, and they felt that introducing evidence of his poetry might actually be damaging to the case. Taylor has failed to present evidence as to why this was an unreasonable trial strategy. As a result, Taylor has not demonstrated how he was prejudiced by this strategic choice.
The motion court's finding was not erroneous, clearly or otherwise, in denying Taylor's motion on this point.
V.
The judgment is affirmed.
All concur.
Taylor v. Roper, 577 F.3d 848 (8th Cir. Mo. 2009). (Federal Habeas)
Background: After defendant's conviction for first-degree murder was affirmed, 944 S.W.2d 925, his sentence of death was affirmed, 18 S.W.3d 366, and the denial of his post-conviction motions for relief was affirmed, 126 S.W.3d 755, defendant filed petition for writ of habeas corpus alleging that the prosecution exercised peremptory challenges based on race, in violation of the Equal Protection Clause, during the selection of both the jury that convicted him and the jury that sentenced him. The United States District Court for the Western District of Missouri, Fernando David Hawke, J., 2007 WL 62690, denied the petition. Defendant appealed.
Holdings: The Court of Appeals, Colloton, Circuit Judge, held that:
(1) state courts' finding that guilt-phase peremptory strikes of prospective black jurors were not discriminatory was not contrary to clear and convincing evidence or unreasonable;
(2) state courts' finding that sentencing-phase peremptory strikes of prospective black jurors were not discriminatory was not contrary to clear and convincing evidence or unreasonable;
(3) state courts did not unreasonably apply Batson; and
(4) state courts' finding that peremptory strikes of prospective alternate black jurors were not discriminatory was not contrary to clear and convincing evidence or unreasonable. Affirmed.
COLLOTON, Circuit Judge.
A jury convicted Leon Taylor of first-degree murder under Missouri law, and a different jury sentenced him to death. After the Supreme Court of Missouri affirmed his conviction and sentence and upheld the denial of his motions for state post-conviction relief, Taylor filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. In his petition, Taylor, who is a black male, alleged that the prosecution exercised peremptory challenges based on race, in violation of the Equal Protection Clause, during the selection of both the jury that convicted him and the jury that sentenced him. The district court FN1 denied Taylor's petition, and we affirm.
FN1. The Honorable Fernando J. Gaitan, Jr., United States District Judge for the Western District of Missouri.
I.
In 1994, Taylor was prosecuted for the robbery and murder of a gas station manager in Independence, Missouri. The Supreme Court of Missouri summarized the incident in its opinion affirming Taylor's convictions. On April 14, 1994, Taylor and two of his relatives, Willie and Tina Owens, pulled into a gas station in Independence. Willie entered the station, and Taylor soon followed. The manager of the station and his eight-year-old stepdaughter were inside. Taylor drew a gun and demanded money from the manager, threatening to shoot him if he did not comply. After the manager handed Willie $400, Taylor ordered the manager and the girl into a back room. There, Taylor shot and killed the manager. Taylor then pointed the gun at the girl and pulled the trigger, but the gun jammed and failed to discharge. Taylor left the girl locked in the back room, and drove away with his companions. See State v. Taylor (Taylor I), 944 S.W.2d 925, 930 (Mo.1997).
Taylor was arrested and charged with first-degree murder, first-degree robbery, first-degree assault, and three counts of armed criminal activity. The Jackson County prosecutor's office gave notice of its intention to seek the death penalty, and the case proceeded to trial.
During jury selection, the prosecution exercised peremptory strikes against three black members of the venire: Antoinette Gordon, Jason Johnson, and Ray Lovelace. Citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), defense counsel objected to the strikes, alleging that they were motivated by the race of the prospective jurors and thus prohibited by the Equal Protection Clause of the Fourteenth Amendment. After the prosecution proffered race-neutral reasons for the strikes, the trial court asked if there was “[a]nything further.” Defense counsel said no, and the trial court overruled Taylor's objections.
Several days later, after the jury had been chosen and the venire discharged, defense counsel renewed Taylor's objection to the prosecution's strike of Lovelace. Based on a further review of the record, counsel argued that the prosecution's race-neutral reasons for removing Lovelace were pretextual. The prosecution stood by its reasons for the strike, and the trial court again overruled Taylor's objection.
After a trial, the twelve-member jury, which included four black jurors, found Taylor guilty of all charges. The jury, however, could not agree on whether Taylor should be sentenced to death for first-degree murder, and under Missouri law at the time, the decision fell to the trial judge. See Mo.Rev.Stat. § 565.030.4, invalidated in part by State v. Whitfield, 107 S.W.3d 253 (Mo.2003). After conducting an additional hearing, the trial court determined that the death penalty was appropriate based on the aggravating circumstance that Taylor had three prior “serious assaultive criminal convictions.” Id. § 565.032.2(1). The trial court sentenced Taylor to death on the murder charge, and life plus 315 years' imprisonment on the remaining charges. Taylor appealed to the Supreme Court of Missouri. While his direct appeal was pending, Taylor filed a motion for post-conviction relief under Missouri Supreme Court Rule 29.15, alleging, among other things, that his trial counsel was ineffective. The trial court denied the motion, and Taylor appealed that ruling to the Supreme Court of Missouri as well.
The state supreme court resolved both Taylor's direct appeal and his appeal from the denial of post-conviction relief in a single decision. The court held that Taylor “abandoned” his Batson objections to the peremptory strikes of Gordon and Johnson by challenging the prosecution's race-neutral reasons for the first time on appeal. Taylor I, 944 S.W.2d at 934. The court suggested that Taylor also waived his objection to the strike of Lovelace by challenging the prosecution's explanation too late, after the venire had been discharged. Id. The supreme court “[n]evertheless” examined the prosecution's reasons for striking Lovelace, and concluded that “the trial court decision was not clearly erroneous.” Id. Rejecting Taylor's Batson claims, the supreme court affirmed his convictions, affirmed in part and dismissed as moot in part the denial of his Rule 29.15 motion, and affirmed his sentences for the noncapital offenses. Id. at 940. The court, however, reversed the sentence of death on the ground that the prosecution improperly urged jurors to rely on their emotions to decide whether the death penalty was appropriate. Id. at 937-38. The case was remanded for a second penalty phase. Id. at 940.
On remand, a new jury was selected to consider Taylor's punishment for first-degree murder. Voir dire proceeded in three phases. In the initial phase, the trial court asked prospective jurors to complete a questionnaire covering various topics, including their views on the death penalty. The court also identified prospective jurors who would suffer undue or extreme hardship from sitting on the jury, and excused those jurors from service. In the next phase, the court divided the remaining jurors into two panels. The prosecution and the defense questioned each panel separately, addressing the jurors as a group. Following this questioning, the court excused a number of jurors for cause.
In the final phase, the court called remaining jurors one at a time to answer further questions from the court and the parties. At the conclusion of each juror's questioning, the parties were given an opportunity to make a challenge for cause, and each juror who was not then excused by the court was deemed “qualified.” The court continued to call individual jurors for questioning until there were thirty-eight qualified jurors. Of this number, thirty were placed on a panel of prospective principal jurors, and eight on a panel of prospective alternate jurors. The prosecution and the defense were each given nine peremptory strikes to remove prospective principals and two peremptory strikes to remove prospective alternates, so that twelve principal jurors and four alternates ultimately would be selected.
The prosecution used its peremptory strikes to remove all six blacks on the final two panels: Ozie Stanley, Tracy Johnson, Edwina Kinsey, and Bonnye Brown from the panel of prospective principal jurors, and Latricia Wilson and Cecilia Smith from the panel of prospective alternates. Defense counsel objected to these strikes on the ground that they were unconstitutionally based on race. After the prosecution offered race-neutral reasons for each strike, defense counsel reasserted its Batson objections and compared some of the blacks who were struck to whites who were not. The court eventually overruled all six of Taylor's Batson objections.
The resulting jury recommended that Taylor receive the death penalty, and the trial court imposed a sentence of death. The Supreme Court of Missouri affirmed Taylor's sentence, concluding that his penalty-phase Batson claims lacked merit. State v. Taylor (Taylor II), 18 S.W.3d 366 (Mo.2000). Taylor then filed a Rule 29.15 motion for post-conviction relief, alleging ineffective assistance of counsel during the second penalty phase. The trial court denied Taylor's motion, and the supreme court affirmed. Taylor v. State (Taylor III), 126 S.W.3d 755 (Mo.2004).
In 2005, Taylor filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. His petition sought review of various claims, including his allegation that the prosecution made peremptory strikes based on race during the selection of the guilt-phase and penalty-phase juries. The district court denied relief, and this court granted a certificate of appealability limited to Batson issues.
II.
[1] [2] [3] “Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his view concerning the outcome of the case to be tried,” Batson established that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race.” 476 U.S. at 89, 106 S.Ct. 1712 (internal quotation omitted). Although States may develop their own procedures for evaluating the constitutionality of a challenge, Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005), Batson enumerated a three-step process to guide a trial court's review:
First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.
Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175 (2008) (internal quotations and brackets omitted). Within this framework, the burden of persuasion to prove purposeful discrimination rests with the defendant, Johnson, 545 U.S. at 170-71, 125 S.Ct. 2410, who may rely on “all of the circumstances that bear upon the issue of racial animosity” to meet it. Snyder, 128 S.Ct. at 1208; see also Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).
[4] Whether a peremptory strike was motivated by race is ultimately a question of fact. See Miller-El, 545 U.S. at 240, 125 S.Ct. 2317. Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), “a determination of a factual issue made by a State court shall be presumed to be correct” in a federal habeas proceeding. 28 U.S.C. § 2254(e)(1). Thus, a state court's determination regarding the prosecution's intent may be set aside only if Taylor rebuts “the presumption of correctness by clear and convincing evidence.” Id.; see Miller-El, 545 U.S. at 240, 125 S.Ct. 2317; Smulls v. Roper, 535 F.3d 853, 861-62, 864 (8th Cir.2008) (en banc); cf. Rice v. Collins, 546 U.S. 333, 339, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006).
Under AEDPA, moreover, a writ of habeas corpus may be granted only in limited circumstances. If Taylor's Batson claims were “adjudicated on the merits in State court proceedings,” then he must show that the adjudication either “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2), or “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Id. § 2254(d)(1).
III.
We first consider Taylor's allegations that the prosecution exercised peremptory strikes based on race during the selection of the jury that convicted him of first-degree murder. Taylor objects to the guilt-phase strikes of three black prospective jurors: Antoinette Gordon, Jason Johnson, and Ray Lovelace.
A.
[5] The State contends that the merits of Taylor's objections to the strikes of Gordon and Johnson are not properly before us, because the Supreme Court of Missouri held that Taylor had “abandoned” those objections. Taylor I, 944 S.W.2d at 934. Relying on the flexibility courts have to develop rules to comply with Batson, Missouri courts have adopted “a unitary procedure for the vindication of Batson claims.” State v. Parker, 836 S.W.2d 930, 940 (Mo.1992). Under this procedure, the prosecution must come forward with race-neutral reasons once a timely Batson objection has been raised, regardless of whether the defendant has made a prima facie showing of purposeful discrimination. Id. at 939-40. If, however, the defendant fails to challenge the prosecution's race-neutral explanation before the venire is discharged, then the objection is considered waived. See, e.g., id. at 937; State v. Antwine, 743 S.W.2d 51, 64 (Mo.1987); State v. Kelly, 851 S.W.2d 693, 697 (Mo.Ct.App.1993); State v. Jackson, 809 S.W.2d 77, 81 (Mo.Ct.App.1991). Applying this rule to Taylor, the Supreme Court of Missouri noted that he challenged the prosecution's reasons for striking Gordon and Johnson for the first time on appeal, and concluded that he had therefore waived his Batson objections. Taylor I, 944 S.W.2d at 934.
Given the supreme court's holding, the State argues that Taylor's constitutional claims regarding the two strikes are procedurally barred. The State contends that the “waiver” holding is an independent and adequate state ground that bars federal habeas relief, see Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), and notes that Taylor did not contest the adequacy of the state procedural bar in the district court. Alternatively, in the event that we reach the merits of the Batson claims, the State asserts that the trial court's rulings upholding the strikes should be treated as adjudications on the merits that are entitled to deference under 28 U.S.C. § 2254(d).
Taylor maintains that Missouri's rule requiring defendants to object after the prosecution gives its race-neutral reasons does not constitute a state ground adequate to preclude federal habeas review. See Lee v. Kemna, 534 U.S. 362, 366, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002) (holding that Missouri Supreme Court Rules 24.09 and 24.10, as applied in Lee's case, were not adequate to bar federal habeas review). According to Taylor, a defendant should be able to preserve a Batson claim by objecting once, to the strike itself. Taylor contends that Missouri's requirement of an additional objection conflicts with federal law as articulated in Batson, which requires only that the trial court decide whether the strike was racially motivated once the prosecution offers its explanation. He thus argues that Missouri's requirement is inadequate as a procedural bar. He further argues that because the Supreme Court of Missouri did not address the merits of his Batson claims, we must conduct our review of the merits de novo, rather than under the deferential standard of § 2254(d).
[6] We find it unnecessary to decide whether Missouri's rule is an independent ground adequate to bar review of Taylor's Batson claims, or whether Taylor should be permitted to challenge the adequacy of the procedural bar for the first time on appeal. Even assuming that Taylor is correct that Missouri's rule is inadequate to bar habeas review, and that § 2254(d) does not apply, his claims challenging the strikes of Gordon and Johnson fail. Whatever the force of the state supreme court's “waiver” holding, the state trial court found that the strikes were race-neutral and not the product of purposeful discrimination. That determination was not rejected by the state supreme court, and it is thus entitled to a presumption of correctness as the “determination of a factual issue made by a State court.” 28 U.S.C. § 2254(e)(1). We conclude based on our examination of the record that Taylor has not rebutted the presumption by clear and convincing evidence, and that he is therefore not entitled to relief.FN2
FN2. In evaluating the constitutionality of the peremptory strikes challenged in Taylor's petition, we take into account evidence presented by Taylor that does not relate specifically to the proceedings in this case. We do not, however, find the evidence strongly probative of discriminatory purpose by the prosecution in Taylor's case. Taylor presents statistical studies purporting to show racial discrimination in capital cases, but the focus of the studies is on racial disparities in the imposition of the death penalty generally, not in the exercise of peremptory challenges specifically. Taylor also presents the affidavit of a former Jackson County assistant prosecutor stating that during his tenure from 1982 to 1987, the office “routinely” struck blacks from juries and had “to develop specific alternative strategies when this was eventually challenged in court.” But that account relates to a period that ended several years before Taylor's prosecution, and it is disputed by the deposition testimony of the prosecutor who was in charge of the office during that same time. He stated that an investigation conducted prior to Batson, which was decided in 1986, showed no pattern of racial discrimination in the office's exercise of peremptory strikes.
[7] We address first the strike of prospective juror Gordon. When the trial court asked for an explanation of the strike, the prosecution cited Gordon's views on the death penalty. The prosecutor explained: “[Gordon] was struck for the reasons during the individual voir dire that when asked if she could legally impose the death penalty, no I don't think I could, I can't say and then she said traditionally I have said no and she stated her reasons were partially religious.” The trial court found that the reasons stated by the prosecutor were race-neutral, and overruled Taylor's objection. The court's ruling includes an implicit finding that the prosecutor's explanation was credible, and that the strike was not motivated by purposeful discrimination. See Smulls, 535 F.3d at 860, 863.
The trial court's finding is supported by the trial record, and Taylor has not mustered clear and convincing evidence to the contrary. The prosecutor accurately characterized the responses Gordon gave during jury selection. At the beginning of individual voir dire, the prosecution asked Gordon whether she could “legitimately consider imposing a sentence of death given the right situation.” Gordon responded, “That's the hard question,” and further answered, “For me, I would say no, I don't think I could.” Asked if she did not feel “under any circumstances or situation after hearing the evidence” that she could “legitimately, actually do it, impose a sentence of death on the defendant,” Gordon repeated, “That's a hard question for me.” She then explained:
[T]raditionally I'd say no and to be actually put in a situation, I couldn't say right at this moment to be honest with you, I couldn't say yes, I couldn't say no. I have traditionally said no. But after weighing the evidence and getting a thorough understanding, I can't tell you what I would say.
Gordon affirmed that her attitude toward the death penalty was “[p]artially a religious based” belief. The prosecutor's characterization of Gordon's responses was thus consistent with the record.
As the questioning continued, Gordon gave different answers to whether she would be able to consider the death penalty. When defense counsel asked if she was “foreclosing the possibility that given the right case you could impose the death sentence,” Gordon stated that she was not “totally ruling that out.” She represented that she could “fairly consider” the death penalty and, in response to further questioning by the prosecution, maintained that “if the circumstances warrant [the death penalty] I could consider it.” But even if Gordon seemed more open to considering the death penalty by the time the questioning ended, this evidence does not undermine the trial court's finding of a nondiscriminatory motive. Gordon's previous answers suggesting reluctance to impose a sentence of death furnished substantial grounds for the trial court to find that the prosecutor's race-neutral explanation was credible.
Taylor asserts that the prosecution's acceptance of two white prospective jurors, Patricia Rowland and Linda Stockdell, shows that its race-neutral reasons for striking Gordon were pretextual. Taylor claims that Rowland and Stockdell gave responses that were comparable to Gordon's, and that the only distinction between them was race. We disagree. Like Gordon, Rowland and Stockdell were asked by the prosecution whether they thought they could “legitimately” consider imposing the death penalty. But unlike Gordon, whose initial responses were equivocal at best, Rowland and Stockdell both answered in the affirmative: Rowland by stating, “Yes I do,” and Stockdell by stating, “Yes, because I do believe in capital punishment.”
Taylor maintains that replies by Rowland and Stockdell to other questions showed that their views on the death penalty were in fact similar to Gordon's. He relies on the fact that both Rowland and Stockdell said the possibility of the death penalty would cause them to hold the prosecution to a higher evidentiary standard than proof beyond a reasonable doubt. It was reasonable for the state courts, however, to conclude that Rowland and Stockdell did not express opposition to the death penalty, but rather simply misstated the requisite standard of proof before the matter was clarified. Both jurors eventually recognized that proof beyond a reasonable doubt was the correct standard. We do not find the comparisons with Rowland and Stockdell to be persuasive evidence of a race-based strike, given the differences between their responses and Gordon's to whether they could consider the death penalty. The peremptory strike of Gordon does not justify a grant of Taylor's application for relief.
[8] We next consider the strike of prospective juror Johnson. The prosecutor defended that strike by stating:
[Johnson] first told us in individual voir dire he could not consider the death penalty. He then went on to say he did not believe in the death penalty. He went on to say that that [sic] shall not kill. He told us he had a moral conviction, he would never vote for death, he would always vote for life without parole and then you know, basically those are all of the reasons we struck him.
The trial court determined that these reasons were race-neutral, and overruled Taylor's objection, implicitly finding that the strike was not motivated by discriminatory intent. See Smulls, 535 F.3d at 860, 863.
Taylor has not demonstrated with clear and convincing evidence that the trial court's finding of no discriminatory motive was incorrect. The prosecutor's race-neutral reasons are supported by the record. Early in the questioning, the trial court asked Johnson if he could “seriously consider” both the death penalty and life imprisonment without parole. Johnson answered, “No.” Asked which punishment he could not consider, Johnson said, “Death.” He explained that he did not “believe in giving someone else the death penalty because that's like saying that that [sic] shall not kill”-a view he attributed to both “a moral conviction” and “religious beliefs.” The prosecution asked if he was “basically” saying that he “could never consider voting to impose a sentence of death,” to which Johnson replied, “Yes.”
Taylor argues that the prosecutor misrepresented Johnson's beliefs by disregarding some of Johnson's other responses. Taylor notes, for example, that when defense counsel asked Johnson if he “could set aside your personal belief about the death penalty and follow the law as the Judge gives it to you,” Johnson said, “Yes.” And when the prosecution later asked if he would “be able to put aside what you believe in your heart and seriously consider voting to impose a sentence of death,” Johnson also said, “Yes.” As in Gordon's case, however, it was reasonable for the trial court to find that the prosecution struck Johnson based on his initial responses, which suggested considered opposition to the death penalty.
Taylor also argues that the prosecution's reasons for striking Johnson apply just as well to Rowland and Stockdell, the two white prospective jurors with whom Taylor compares Gordon. But whereas Stockdell said that she believed in capital punishment and Rowland said without any suggestion of personal opposition that she could consider the death penalty, Johnson stated that he did not believe in the death penalty based on his moral and religious convictions. Taylor has not shown by clear and convincing evidence that the state court was incorrect in finding that the prosecution's strike of Johnson was free from racial bias.
B.
The final guilt-phase Batson objection concerns the prosecution's strike of Lovelace. In the trial court, Taylor did not immediately challenge the prosecution's race-neutral explanation for this strike. He waited several days before objecting to the prosecution's reasons. Although the venire had been discharged by then, the trial court entertained Taylor's challenge. The court determined that the prosecution's reasons were race-neutral, and implicitly found that the strike was not motivated by purposeful discrimination when it overruled the challenge. See Smulls, 535 F.3d at 860, 863. On appeal, the Supreme Court of Missouri stated the following:
Normally, a defendant must challenge a State's explanation prior to discharge of the venire so that the trial court can correct the alleged error without having to call a new venire and select a new jury. Nevertheless, an examination of the prosecutor's reasons for striking Loveland [sic] indicates that the trial court decision was not clearly erroneous.
Taylor I, 944 S.W.2d at 934 (citation omitted).
[9] The State argues that we are precluded from considering the merits of Taylor's Batson claim challenging the prosecution's strike of Lovelace. It contends that the supreme court's rejection of Taylor's claim rested on an independent and adequate state ground-namely, Missouri's rule requiring defendants to challenge the prosecution's race-neutral reasons before the venire is discharged. We read the supreme court's decision differently. The opinion does not state “clearly and expressly” that it rests on a state procedural bar, Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (internal quotations omitted), but merely notes that a defendant must “[n]ormally” challenge the prosecution's reasons before the venire is discharged. The court then proceeded, “[n]evertheless,” to address the merits of Taylor's Batson claim. We thus conclude that Taylor's claim is not procedurally barred.
[10] The trial court found no discrimination in the prosecution's strike of Lovelace, and the Supreme Court of Missouri affirmed that finding. Unless Taylor rebuts by clear and convincing evidence the presumption that this finding was correct, 28 U.S.C. § 2254(e)(1), and shows that the finding was unreasonable, id. § 2254(d)(2), we may not grant him relief. See Miller-El, 545 U.S. at 240, 125 S.Ct. 2317; Smulls, 535 F.3d at 861-62, 864.
The prosecutor offered the following race-neutral explanation for striking Lovelace:
We struck Mr. Lovelace because of the reason we also struck a white juror, Mr. [Matthew] Berridge and also why we struck another juror, ... Rodney Johnson due to his education. He only has a 10th grade education. The further reason I struck him, ... during general voir dire I didn't like his attitude. He was very inattentive, I saw him at one time I believe his eyes were closed .... He was constantly fidgeting, looking down, looking away.
Taylor argues that the prosecutor's comparison of Lovelace with Berridge is unsupported, because Berridge was neither white, as the prosecutor stated, nor uneducated, as the prosecutor implied. Rather, Taylor points out, Berridge was an American Indian who attended audio engineering school. These observations, however, do not undermine the trial court's finding of no discriminatory motive. Whether Berridge was American Indian, as opposed to white, is not significant; what matters is that he was not black. See Miller-El, 545 U.S. at 241, 125 S.Ct. 2317 (explaining that a prosecutor's strike of a black juror should be compared with the prosecutor's treatment of “otherwise-similar nonblack ” jurors) (emphasis added). That Berridge attended audio engineering school does not necessarily mean that he had more high-school education than Lovelace, who did not continue past the tenth grade. Taylor has not produced jury questionnaires or other evidence to refute the prosecutor's assertion about Berridge's lack of education.
[11] Taylor also argues that the prosecution failed to strike two white prospective jurors, Harold Hageman and Lloyd Jones, whose educational levels were similar to Lovelace's. Hageman and Jones, however, each had one more year of high school than Lovelace. The prosecution also defended its decision to seat Hageman on the ground that he “was well into his 60's as far as age wise,” suggesting that older jurors were more desirable to the prosecution. While the differences among these jurors are not great, peremptory challenges may turn on slight distinctions, so long as they are nondiscriminatory. The evidence cited by Taylor does not rebut the presumption of correctness accorded the trial court's decision to credit the education-related explanation. Whether or not we presume that the trial court also credited the prosecutor's concern about Lovelace's demeanor, see Snyder, 128 S.Ct. at 1209, Taylor has not shown by clear and convincing evidence that the trial court's finding of no discriminatory motive was incorrect, or demonstrated that the finding was unreasonable.
IV.
We next consider Taylor's claims that the prosecution exercised peremptory strikes based on race during the selection of the jury that sentenced him to death. In the final phase of voir dire, the prosecution used its peremptory strikes to remove all six remaining black prospective jurors. The impact of the strikes on the composition of the jury, however, is not dispositive. The important legal question is whether the prosecution acted with a discriminatory purpose in exercising any of the strikes.
A.
[12] When asked by the trial court to explain the peremptory strike of prospective principal juror Ozie Stanley, the prosecutor gave several reasons. The first set related to the effect that serving on the jury would have on Stanley's employment and income. During voir dire, Stanley had stated that he was getting called into work as a substitute teacher almost every day, and that he was the coach of a high school basketball team that had games scheduled for the same week as the trial. The prosecutor expressed concern about these commitments, noting that Stanley had “made it known there is a hardship for him.” The prosecutor explained, “We're hitting him in the wallet,” and “I just don't want a juror on there who is losing money because they're here.”
The second set of reasons related to Stanley's views on the death penalty. The prosecutor drew attention to one of Stanley's answers on the questionnaire that prospective jurors completed in the first phase of voir dire. Question 46 asked jurors to circle the statement (or statements) that most accurately represented their beliefs regarding the death penalty. Jurors were given the option of nine statements, labeled “a” through “i”:
a. In a case in which the defendant is convicted and in which in [sic] the death penalty is requested, I will always vote for the death penalty.
b. I am strongly in favor of the death penalty, and would have a difficult time voting against it.
c. I am generally in favor of the death penalty, but I would base my decision to vote on it from the facts and the law in this case.
d. In a case in which the defendant is convicted and in which the death penalty is requested, I can vote for the death penalty if it is appropriately based on the facts and the law in the case.
e. I am generally against to [sic] the death penalty, but I believe I can put aside my feelings against the death penalty and vote for the death penalty if it is called for by the facts and the law in the case.
f. Although I am philosophically, morally, or religiously against to [sic] the death penalty, I do believe that I can follow the law that requires me to fully consider the death penalty as one of two possible options that I may vote for in this case.
g. I am strongly against to [sic] the death penalty, and I will have a difficult time voting for it.
h. I am personally, morally, or religiously against to [sic] the death penalty, and would never vote for it under any circumstances.
i. None of the above.
Stanley circled statements “d,” “e,” and “f.” The prosecutor explained: “Every surviving venireperson who marked F, with the exception of number 7, Nancy Pfeifer, has been struck peremptorily by the State. The reason we kept Ms. Pfeifer is her answers on individual [ voir dire ] did not indicate that of an F juror.”
The prosecutor also referenced Stanley's answer to a question during individual voir dire. Stanley was asked about the statements he had circled on the questionnaire, and his answer was: “If I said death penalty, just automatically, am I doing the same thing? You know, if I vote to give someone a death penalty what shoes am I now wearing? You know, am I in the same boat?” This response, the prosecutor argued, provided additional justification for the strike. The prosecutor said, “We took that [response] to mean he identified with [Taylor] on this .... Am I now putting myself down as a killer for the after-life?”
After listening to the prosecutor's explanation, the trial court stated:
I'm going to deny the challenge on Ozie Stanley. I believe there are a variety of race-neutral reasons that exist. This may apply to several of these jurors. But between the questionnaire and individual questioning, we do have a fairly good understanding as relates to many of these jurors relating to their attitude towards the death penalty.
The court then mentioned two cases: Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), which reaffirmed that a prospective juror may be excluded for cause if his opposition to the death penalty will “prevent or substantially impair the performance of his duties,” id. at 424, 105 S.Ct. 844 (internal quotation omitted); and Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), which held that a prospective juror may be excluded for cause if he “will automatically vote for the death penalty in every case.” Id. at 729, 112 S.Ct. 2222 (emphasis added). The trial court explained that in ruling on challenges for cause earlier in voir dire, it had “attempted to cut a fairly broad swath between the Witt and Morgan excludables.” But, the court stated, “if someone is clearly towards one end of the spectrum or the other, I think that in and of itself in most circumstances would certainly be a reason [for a peremptory strike], and I think [Stanley] would fit that category.” The court added, “I also think all of his employment type problems fit that category.” After defense counsel reasserted Taylor's objection to the strike, the trial court made final its ruling.
The Supreme Court of Missouri affirmed. Recognizing “the superior vantage point occupied by the trial judge,” who “was able to view the panel members; listen to their responses; analyze and supervise the statements and questions made by the prosecutor during voir dire; and evaluate the reasons the prosecutor offered for exercising his peremptory challenges as he did,” Taylor II, 18 S.W.3d at 375, the court concluded that Taylor “failed to establish that the State's justification for striking [Stanley] was mere pretext.” Id. at 371-72.
Taylor claims that the conclusion of the state courts is unsupportable for three reasons. First, he argues that the prosecutor was not genuinely concerned about Stanley's answer on the questionnaire, because the prosecution chose not to strike Nancy Pfeifer, a white juror who, like Stanley, marked “f” on question 46.FN3 But as the prosecutor himself explained, Pfeifer's answers during individual voir dire showed that statement “f” did not fully reflect her views on the death penalty. Although Pfeifer stated that she “[p]ersonally ... wish[ed] we didn't have to have [the death penalty],” she also stated, “it is a fact that we have to have it, and from my views and my Christian standpoint it is biblical .... [B]ecause of my Christian belief and the way it has been set up it has been ruled that if someone takes a life their life has to be taken, depending on the facts and what's been set forth.” Far from being “religiously against” the death penalty, as her selection of “f” may have suggested in isolation, Pfeifer thought the death penalty was religiously required in certain circumstances. Stanley, by contrast, expressed reservations about voting for the death penalty, questioning whether a juror's vote for the punishment would place him in “the same boat” as the murderer. Therefore, Pfeifer was not similarly situated to Stanley, and the prosecution's decision not to strike Pfeifer was not indicative of pretext.
FN3. The State argues that Taylor waived this and other comparisons with nonblack prospective jurors by not raising the comparisons in the trial court. In Taylor II, however, the Supreme Court of Missouri did not hold that Taylor had procedurally defaulted reliance on these comparisons. We therefore consider them in light of the evidence before the state courts. See Snyder, 128 S.Ct. at 1211 n. 2; Miller-El, 545 U.S. at 241 n. 2, 125 S.Ct. 2317.
Other evidence in the record supports the credibility of the prosecution's explanation that Stanley was struck because he circled “f.” Of the eight statements listed on question 46, “f” was the least favorable to the death penalty marked by any of the thirty-eight prospective jurors on the final two panels. Six of the thirty-eight marked “f,” and the prosecutor did not exaggerate when he said that every one, except Pfeifer, was peremptorily struck by the prosecution. The “f” jurors who were struck included two nonblack jurors, one of whom, like Stanley, marked not just “f,” but “d” and “e” as well. That the prosecution exercised its strikes so consistently against “f” jurors undermines Taylor's argument that the prosecution's concern about Stanley's selection of “f” was pretextual.
Second, Taylor contends that the prosecutor misrepresented Stanley's response to a question during individual voir dire, and that this misrepresentation evinces discriminatory intent. According to Taylor, the prosecutor described Stanley as saying that he would consider Taylor's viewpoint before voting for the death penalty, when Stanley said no such thing. But while the prosecutor did describe Stanley as saying that he would place himself in Taylor's shoes, the best reading of the transcript is that the prosecutor meant only that Stanley, by asking whether a vote for the death penalty would put him in “the same boat” as the defendant, implied that he thought imposition of the death penalty was akin to murder. The prosecutor was concerned not that Stanley would consider the death penalty from Taylor's perspective, but rather that Stanley thought voting for the death penalty would be “putting [him]self down as a killer for the after-life.” Taylor's claim that the prosecutor misrepresented Stanley's views has no merit.
Third, Taylor argues that the prosecutor's reasons relating to Stanley's work commitments were pretextual because numerous other prospective jurors sought to be excused because of work. Taylor, however, fails to identify any particular juror with commitments similar to Stanley's who was not ultimately excused.
Taylor has not presented clear and convincing evidence showing that the prosecution struck Stanley because of race. The prosecutor accurately characterized Stanley's answers on the questionnaire and during individual questioning, and persuasively explained why Pfeifer, a white juror proffered by Taylor as a comparator, was not peremptorily struck. The determination by the state courts that the prosecution's race-neutral reasons for striking Stanley were not pretextual was thus not contrary to clear and convincing evidence or unreasonable.
[13] In addition to challenging the factual basis of the state courts' decision, Taylor argues that the decision involved an unreasonable application of clearly established federal law. He contends that the Supreme Court of Missouri unreasonably applied Batson by giving too much weight to whether similarly situated white prospective jurors were challenged by the prosecution. But while the supreme court did note before rejecting Taylor's claim that he “did not assert that there were white venirepersons on the panel who were similarly situated to [Stanley],” Taylor II, 18 S.W.3d at 371, there is no indication that it assigned more importance to the existence of such comparisons than Batson allows. Taylor has not shown that the supreme court unreasonably applied clearly established federal law.FN4
FN4. Taylor similarly argues that the state supreme court unreasonably applied Batson by giving too much weight to comparisons in adjudicating the other penalty-phase strikes challenged in his petition. For the same reasons, we reject this argument in the case of the other jurors.
B.
Like Stanley, Tracy Johnson circled statement “f” on question 46. When the prosecution was asked to provide an explanation for striking Johnson, that was the first reason the prosecutor gave: “Ms. Johnson marked F on the questionnaire.” On the subject of Johnson's attitude toward the death penalty, the prosecutor also noted an answer she gave during individual voir dire, in which she said: “I don't think the death penalty should be imposed on just any type of murder .... If you have somebody that went out there and just say committed a real heinous crime such as something Berdella did, something like that, okay, the death penalty should be imposed like that.” The prosecutor explained that Berdella “was a mass murderer, very gruesome mass murderer.”
In addition to Johnson's views on the death penalty, the prosecution cited various of her affiliations:
She works for Ad Hoc [Group Against Crime, a community-based organization]. She has two brothers who were convicted themselves of robbery in the first degree. On her questionnaire, [she said] she was questioned herself about a murder that her nephew was involved in. She notes she is a friend of [criminal defense attorney] Doc Holliday.
The prosecutor concluded, “With that kind of baggage on her, but basically because of the F and then her answers to that, and her employment with Ad Hoc and her brothers' convictions for robbery, that's why we moved to strike her.”
For reasons that are not well explained, the trial court determined that working for Ad Hoc and knowing Holliday were not race-neutral reasons for a strike. The trial court believed, however, that “[Johnson's] position on the death penalty, and ... having the relative who has been tried [for murder] in Circuit Court here and also the fact that she knows or has other relatives that were tried for the crime of robbery ... present sufficient race-neutral reasons.” On that basis, the court preliminarily overruled Taylor's objection. Defense counsel argued that the prosecution did not strike a “similarly situated” white juror, Charles Knoderer, who mentioned serial killers Ted Bundy and John Wayne Gacy during questioning, and who had a brother in prison. Upon hearing that Knoderer marked “d” on the questionnaire, however, the trial court made final its overruling of Taylor's objection, reiterating that “a sufficient race-neutral record has been made.”
The Supreme Court of Missouri upheld the trial court's decision, stating it was “clear that the prosecutor gave race-neutral reasons with distinctions regarding the white venirepersons and the black venirepersons struck.” Taylor II, 18 S.W.3d at 372. When it said that “the prosecutor gave race-neutral reasons” for striking Johnson, the supreme court necessarily rejected the trial court's assertion that Johnson's employment with Ad Hoc and her friendship with Holliday were not race-neutral reasons. Elsewhere in its opinion, the court explained that “[t]he prosecutor presented to the [trial] court that Mr. Holliday had been prosecuted by the Jackson County prosecutor's office, which was a race-neutral reason.” Id. at 371 n. 8. The supreme court did not elaborate on its conclusion regarding employment with Ad Hoc, but it is evident that the trial court misapplied the second step of the Batson analysis on this point, as there is no suggestion that employment with this organization is “peculiar to any race.” Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam) (internal quotation omitted).
Taylor asserts that the state supreme court's decision involved an unreasonable application of clearly established federal law, 28 U.S.C. § 2254(d)(1), because the court did not apply a proper mixed-motive analysis to the strike of Johnson. Citing our court's decision in United States v. Darden, 70 F.3d 1507, 1531 (8th Cir.1995), Taylor contends that the supreme court unreasonably applied the law by failing to shift the burden of proof to the prosecution to show that it would have struck Johnson even without consideration of reasons that were not race-neutral. As the supreme court found that all of the prosecution's reasons were race-neutral, however, there was no need for that court to consider whether and how mixed-motive analysis should apply to a Batson challenge.FN5
FN5. In Snyder, the Supreme Court held that when discriminatory intent is a substantial or motivating factor for a peremptory strike, the prosecution must show, at a minimum, that the impermissible motive was not “determinative” before the strike can be sustained. 128 S.Ct. at 1212. Given the state supreme court's finding that the prosecutor's stated reasons for striking Johnson were race-neutral, we need not determine what sort of mixed-motive analysis, if any, was embodied in clearly established federal law at the time of Taylor's trial. Compare, e.g., Kesser v. Cambra, 465 F.3d 351, 372-75 (9th Cir.2006) (en banc) (Wardlaw, J., concurring), with id. at 381-84 (Rymer, J., dissenting).
[14] On the question whether the determination of the state courts that the prosecutor gave “sufficient race-neutral reasons” to strike Johnson was incorrect and unreasonable, we conclude that Taylor has not shown an entitlement to relief. The prosecutor stated that Johnson was struck “basically because of the F and then her answers to that, and her employment with Ad Hoc and her brothers' convictions for robbery.” Taylor argued in the trial court that the prosecutor's reasons relating to Johnson's views on the death penalty were pretextual, comparing Johnson with Knoderer. But although both Johnson and Knoderer invoked the names of serial killers during individual questioning, Johnson marked “f” on the questionnaire-registering philosophical, moral, or religious opposition to the death penalty-while Knoderer marked “d.” The prosecution struck every “f” juror on the final two panels except Nancy Pfeifer, whose answers to other questions showed her to be more accepting of the death penalty than an “f” answer implied. It was not incorrect or unreasonable for the state courts to conclude that Johnson's answer on the questionnaire, together with her responses about the death penalty during individual questioning and her relationship with family members involved in serious crimes, led the prosecution to strike her.FN6
FN6. Taylor argues that the prosecutor's assertion that Johnson was acquainted with Holliday is unsupported by the record. Whether or not the prosecutor was mistaken about that point, the determination of the state courts was not unreasonable or contrary to clear and convincing evidence.
C.
[15] Edwina Kinsey was a prospective principal juror who marked “e” on the questionnaire. Addressing the trial court, the prosecutor gave the following explanation for striking her:
[D]uring the death penalty qualification, your initial question is what are your views on the death penalty. She, without hesitation, said, “Personally, I'm opposed to the death penalty.” That's the reason we're striking Ms. Kinsey. Also, it's a belief she has held for some time is what she stated to the Court.
The trial court commented that its notes “reflect[ed] that she was clearly a qualified juror but definitely much closer to the Witt end than to the Morgan end.” The court determined that the prosecutor's justification was race-neutral, and preliminarily overruled Taylor's objection to the strike.
Defense counsel then compared Kinsey with white prospective juror David Robinson, arguing that while both circled “e” and expressed personal opposition to the death penalty, the prosecution struck only Kinsey. The prosecutor responded that there was a “distinction between these two.” He explained that the two jurors responded differently when asked during individual voir dire about their feelings toward the death penalty: whereas the “first words right out of [Kinsey's] mouth” were that she was personally against the death penalty, Robinson “start[ed] off” by stating that the death penalty had “pros and cons.” The trial court concluded that the prosecution had “presented sufficient race-neutral reasons,” and made final its decision overruling Taylor's objection.FN7 The Supreme Court of Missouri affirmed, again on the basis that it was “clear that the prosecutor gave race-neutral reasons with distinctions regarding the white venirepersons and the black venirepersons struck.” Taylor II, 18 S.W.3d at 372.
FN7. Taylor contends that the trial court misapplied Batson by concluding its analysis once it determined that the prosecutor offered race-neutral reasons, without proceeding to evaluate whether those reasons were credible. Our precedent holds, however, that an evaluation of credibility was implicit in the trial court's determination that “the State has presented sufficient race-neutral reasons” and its decision to “overrule the Batson challenge as it relates to Ms. Kinsey.” See Smulls, 535 F.3d at 860, 863.
Taylor maintains that the prosecution struck Kinsey because of her race. He relies on the fact that the prosecution did not strike two white prospective jurors whom he deems comparable to Kinsey. One is Robinson. On the questionnaire, Robinson marked “e.” When asked during individual voir dire “what do you feel about the death penalty,” Robinson answered, “I don't know. There are pros and cons about it.” He continued, “I can't really answer that question right now. It just-how would I put that?” After the trial court assured him, “[y]ou can put it any way you want to put it,” Robinson said, “In my beliefs I don't believe in it. In the law part of it I do believe in it .... So I've got a split right there.” He said, “I'm just right in the middle,” and rated himself a five on a scale of one to ten between life without parole and the death penalty.
Taylor argues that Robinson and Kinsey were similarly situated because both marked “e” and expressed comparable views on the death penalty. Taylor points out that Kinsey stated in follow-up questioning that she could consider imposing the death penalty, that she would not always vote for life imprisonment, and that as a juror she “would have to go along with” the death penalty “if it was [her] decision.” According to Taylor, Kinsey ultimately adopted the same attitude toward the death penalty as Robinson-that is, both said essentially that they were capable of considering the death penalty under the law, although they were opposed to it in their personal beliefs.
Notwithstanding Kinsey's responses to follow-up questioning, the record still permits the finding of the state courts that the prosecution struck Kinsey for race-neutral reasons. When Kinsey was asked during individual voir dire how she felt about the death penalty, her immediate responses were noticeably different from Robinson's. Unlike Robinson, who acknowledged that the death penalty had “pros and cons,” Kinsey stated unequivocally, “I personally am against the death penalty.” In further contrast to Robinson-who expressed his views tentatively, stating at one point, “I don't know,” and at another, “I can't really answer that question right now”-Kinsey gave reason to believe that her feelings were clear and settled. Indeed, she made known that she had been personally opposed to the death penalty “for some time.” Although Kinsey eventually said that she could consider the death penalty, she never acknowledged that the death penalty had any “pros,” as Robinson did.
Even if we assume, moreover, that Kinsey's later responses expressed views similar to Robinson's, it was not unreasonable for the state courts to credit the prosecutor's perception of a race-neutral distinction between these jurors based on their initial answers. Even if two jurors ultimately make comparable statements after the process of questioning and rehabilitation by counsel, the prosecution is entitled to take into account the entire range of statements, including the initial positions stated by the jurors. Here, the prosecutor noted that Robinson “start[ed] off” by stating that the death penalty had “pros and cons,” whereas the “first words right out of [Kinsey's] mouth” were that she was personally against the death penalty. The prosecution permissibly favored Robinson over Kinsey, because the difference in their initial responses may have reflected the relative depth of their feelings toward the death penalty, which in turn could have influenced deliberations over the appropriate punishment. Attorneys often make distinctions between prospective jurors based on instincts formed by limited information, and substantial grounds for distinguishing among jurors are not always available. See Miller-El, 545 U.S. at 252, 125 S.Ct. 2317. Even fine race-neutral distinctions between them are a permissible basis for strikes, and the state courts reasonably credited the prosecutor's articulated distinction between Kinsey and Robinson.
Taylor also compares Kinsey with Samantha Edmondson, a white prospective juror who circled “d” on the questionnaire. During individual voir dire, Edmondson was asked “what are your feelings about the death penalty,” and her response was “I think I generally believe in that, but the more I think about actually imposing that, I think I could, based on facts and things like that, but I think it would have an unfortunate effect on me.” Edmondson clarified that she thought she would experience an “unfortunate effect” “[e]ither way,” regardless of whether she voted for the death penalty or life imprisonment. According to Taylor, Kinsey's responses during individual questioning were substantially similar to Edmondson's. But when asked exactly the same question-“What are your feelings about the death penalty?”-Kinsey gave a completely different answer: “I personally am against the death penalty.” The prosecution's decision to strike Kinsey but not Edmondson thus does not give rise to an inference of discriminatory intent.
On the record as a whole, Taylor has not presented clear and convincing evidence to rebut the presumptive correctness of the state-court determination that the prosecution's race-neutral reasons for striking Kinsey were credible. Nor has he demonstrated that that state-court determination was unreasonable. Because the record does not show that there was “no permissible alternative but to reject the prosecutor's race-neutral justifications,” Collins, 546 U.S. at 341, 126 S.Ct. 969, we reject Taylor's claim that the strike of Kinsey entitles him to relief.
D.
[16] Bonnye Brown was the fourth and final black prospective principal juror peremptorily struck by the prosecution. In defending the strike, the prosecutor pointed to Brown's views on the death penalty: “Ms. Brown, during individual voir dire, stated that, ‘My first choice is life without parole.’ ‘Very, very extreme to give the death penalty.’ She was definite on that.” The prosecutor also cited one of Brown's responses on the questionnaire. In answer to a question asking whether she had “ever witnessed an act of serious violence or abuse,” Brown had written, “no but I has [sic] seen the results of someone being abused.” The prosecutor said that he “locked onto” this answer because he anticipated the defense to rely on the abuse Taylor experienced as a child as a mitigating circumstance at sentencing.
The trial court first found race-neutral both of the prosecution's stated reasons for striking Brown-her feelings toward the death penalty and her witnessing the results of abuse. After the court preliminarily overruled Taylor's objection to the strike, defense counsel argued that the prosecution's reasons applied just as well to white prospective jurors whom the prosecution did not strike. The trial court considered those comparisons, and told defense counsel, “You've convinced me this abuse thing is not a particularly persuasive reason to strike this woman.” The court explained, “I'm not saying her abuse comments aren't race-neutral or capable of consideration, but it's clear to me there are a variety of folks that said equally as poignant statements as her.”
The trial court rejected the Batson challenge after finding credible the prosecution's other reason for striking Brown. Using the transcript of individual voir dire to refresh its recollection of Brown's answers, the trial court noted, “She clearly had some pretty definite statements that she had some severe hesitations about the death penalty. I had to rehabilitate her and the like.” Although Brown marked “c” and “d” on the questionnaire, the trial court described “her li[v]e performance” during questioning as “probably an F, G, or F, something like that.” Accordingly, the trial court made final its decision to sustain the strike.
In resolving this challenge, the trial court remarked that it was “personally troublesome” to have a death penalty case with a black defendant and an “all white jury,” but concluded that a race-neutral reason for the strike had been established. The court reasoned that the only way to disallow the strike would be “to not follow what the law is.” The Supreme Court of Missouri affirmed, noting the trial court's findings that the prosecution had not struck white jurors who had witnessed abuse, but that Brown had shown hesitation toward voting for the death penalty. Taylor II, 18 S.W.3d at 372.
Taylor contends that the record does not support the trial court's finding that the prosecution struck Brown because of her views on the death penalty. Taylor concedes that Brown stated during individual questioning that her “first choice would always be life without parole.” Taylor maintains, however, that the prosecutor mischaracterized Brown's statement by implying that it reflected reservations about the death penalty. According to Taylor, when Brown said that her “first choice would always be life without parole,” she meant merely that in accordance with Missouri law, she would not vote for the death penalty unless the prosecution proved beyond a reasonable doubt at least one of the statutory aggravating circumstances. See Mo.Rev.Stat. § 565.030.4. Taylor argues that the prosecutor's mischaracterization of Brown's statement undermines the trial court's finding that the prosecutor's basis for striking Brown was credible.
Brown's statement, however, is fairly understood to capture more than the prosecution's burden of proof at sentencing. Under Missouri law, jurors have discretion to impose a sentence of life imprisonment without parole, even when the prosecution proves one of the statutory aggravating circumstances. See id. It was certainly reasonable for the prosecutor to treat Brown's statement that her “first choice would always be life without parole” as an indication of how she would exercise that discretion. Indeed, that statement was not the only one she made suggesting that she would be reluctant to impose the death penalty. As the prosecutor noted, Brown also stated that she would vote for the death penalty only in a “very, very extreme” case. She emphasized that she “would always lean towards life unless it is that very extreme situation,” and that “death would be [her] last choice.” The trial court agreed with the prosecutor that Brown made “some pretty definite statements that she had some severe hesitations about the death penalty.” That the prosecutor cited Brown's statement about her “first choice” as an example of her views on the death penalty is thus not indicative of pretext.
Taylor has not presented clear and convincing evidence that the prosecution's race-neutral reason relating to Brown's views on the death penalty was pretextual, or shown that the decision of the state courts was based on an unreasonable determination of the facts. He is therefore not entitled to relief on this claim.
E.
Taylor's remaining arguments concern the prosecution's use of peremptory strikes to remove two black women who were prospective alternate jurors. Our court held in Carter v. Kemna, 255 F.3d 589 (8th Cir.2001), that a state court did not unreasonably apply clearly established federal law by allowing a judgment to stand, despite the improper exclusion of an alternate juror, where no alternate was called to deliberate on the verdict. Id. at 592. We reasoned that “lower courts disagree about whether Batson requires reversal of a conviction when an alternate juror is improperly excluded, but no alternate joins the deliberating jury,” id., and the Supreme Court had not decided whether harmless-error analysis is applicable in that situation. In Taylor's case, none of the alternate jurors in the second penalty phase joined the deliberating jury. Carter would thus seem to resolve Taylor's claims for relief based on peremptory strikes of prospective alternate jurors. The State, however, does not raise this point. Because we conclude that the factual determinations of the state courts are otherwise entitled to stand, we need not give further consideration to the possible applicability of Carter.
[17] The prosecution exercised one of its two peremptory strikes against prospective alternates to remove Latricia Wilson. Following defense counsel's objection, the prosecutor explained:
Wilson ... marked F on her questionnaire. Only one of the 38 jurors who marked F survived our strikes for our peremptory challenges, and that's [Nancy Pfeifer], and that's because her answers on individual [ voir dire ], in my opinion, made her more of a C or B type juror according to the questionnaire. Also, [Wilson's] answers, religiously she said she would be very hesitant.
Recalling Wilson's answers during individual questioning, the trial court stated: “I think any objective view of her testimony is that she clearly had reservations about the death penalty in my view, not such that she could be stricken for cause, but she did have such reservations. And I thought they were clearly noticeable.” The trial court determined that the prosecution's reasons for striking Wilson were race-neutral, and preliminarily overruled Taylor's objection. After defense counsel reasserted the objection without further argument, the trial court made its ruling final. The Supreme Court of Missouri affirmed the trial court's decision, concluding that Taylor “failed to establish that the State's justification for striking [Wilson] was mere pretext.” Taylor II, 18 S.W.3d at 371-72.
In challenging this conclusion, Taylor compares Wilson with David Robinson, a white juror who was not struck by the prosecution, but who Taylor contends had similar reservations about the death penalty. We are not convinced that the comparison with Robinson demonstrates that the determination of the state courts was incorrect and unreasonable. Wilson marked “f” on the questionnaire. Consistent with that answer, Wilson expressed religious opposition to the death penalty during individual voir dire. She said, “religiously I don't think that the death penalty is a good form of punishment,” and thought that her religious beliefs might well affect her weighing of the case. Robinson, by contrast, marked “e” on the questionnaire. During individual questioning about the death penalty, Robinson portrayed himself as a middle-of-the-road juror: “In my beliefs I don't believe in it. In the law part of it I do believe in it .... So I've got a split right here.” He stated firmly that he could separate his personal beliefs from the law, expressing “no doubt in [his] mind” that he could consider both punishment options. On this record, it was reasonable for the state courts to believe that the prosecution distinguished Wilson from Robinson based on these answers. Accordingly, we conclude that the state-court determination that the prosecution's race-neutral reasons for striking Wilson were credible was neither incorrect nor unreasonable.
F.
[18] Cecilia Smith was the other prospective alternate whom the prosecution peremptorily struck. Of the eight prospective alternates, the prosecutor explained, “we struck the two who marked lowest down towards leaning towards life without parole”: Wilson, who marked “f,” and Smith, “who marked D and E.” The prosecutor gave as additional reasons for striking Smith that she knew Charles Brown, a criminal defense attorney, and that she stated during individual voir dire that “she would lean towards life without parole.”
The trial court determined that the prosecution's reasons were race-neutral and made a preliminary ruling denying Taylor's Batson challenge. Defense counsel compared Smith with Jennifer Tartaglia, a white juror who chose “e” and knew a criminal defense attorney, but who was not struck by the prosecution. The prosecutor disputed the significance of the comparison, pointing out that he could not have struck Tartaglia instead of Smith because Tartaglia was on a different panel, among the prospective principal jurors. After considering these arguments, the trial court issued a final ruling denying Taylor's challenge. That ruling was upheld by the Supreme Court of Missouri, which said it was “clear that the prosecutor gave race-neutral reasons with distinctions regarding the white venirepersons and the black venirepersons struck.” Taylor II, 18 S.W.3d at 372.
Taylor makes two arguments in support of setting aside the state-court determination that the prosecution's strike of Smith was not racially motivated. His first contention is that the prosecutor's explanation for striking Smith fails on its own terms, because Smith was not one of two prospective alternates who seemed least inclined to vote for the death penalty. Based on the questionnaire, Taylor contends, the prosecution should have struck a white alternate named Rebecca Hadjian instead of Smith. In answer to question 46, Hadjian declined to choose any of the eight representative statements about the death penalty. Instead, she marked “i,” for “None of the above,” and wrote as an explanation, “I am bias [sic], depends on the type of crime and the conviction.” Taylor argues that by “bias,” Hadjian actually meant “unbiased,” and this does seem to be the most likely meaning in view of Hadjian's statements during individual voir dire. But we do not see how Hadjian's answer shows that she was less willing to impose the death penalty than Smith. If Hadjian was “unbiased” toward the death penalty, then her views essentially tracked statement “d,” which expressed no opinion in favor of or against the death penalty. All the other prospective alternates, except Wilson, marked “d.” But in addition to “d,” Smith marked “e,” indicating that she was “generally against” the death penalty. That answer made Smith appear less inclined to vote for the death penalty than every other prospective alternate except Wilson. The state courts thus had a sound basis to credit the prosecutor's assertion that it struck “the two who marked lowest down” on the questionnaire, regardless of race.
Taylor's other contention is that knowing Charles Brown was not a credible reason for striking Smith, given that the prosecution did not strike Tartaglia and Pamela Andersen, two white jurors who also knew criminal defense attorneys. These comparisons do not persuasively undermine the credibility of the prosecution's race-neutral explanation for striking Smith. That Smith knew a criminal defense attorney was only a secondary factor in the prosecution's decision to strike her. The determinative factor, according to the prosecutor, was that she marked “d” and “e” on the questionnaire, and testified that she would lean toward life without parole. In addition, Tartaglia and Andersen were prospective principal jurors, and the prosecution could not have challenged them instead of Smith. We therefore conclude that the state-court finding of no purposeful discrimination in the prosecution's strike of Smith was not incorrect or unreasonable.
* * *
For the foregoing reasons, the judgment of the district court is affirmed.
2. Gerald Smith January 18, 1990 Karen Roberts
3. Winford L. Stokes, Jr. May 17, 1990 Pamela Brenda
4. Leonard Marvin Laws May 17, 1990 John Seward
5. George Clifton Gilmore August 21, 1990 Mary Luella Watters
6. Maurice Oscar Byrd August 23, 1991 Judy Cazaco, James Wood, Edna Ince, and Carolyn Turner
7. Ricky Lee Grubs October 21, 1992 Jerry Thornton
8. Martsay Bolder January 27, 1993 Theron King
9. Walter Junior Blair July 21, 1993 Kathy Jo Allen
10. Frederick Lasley July 28, 1993 Janie Tracy
11. Frank Joseph Guinan October 6, 1993 John McBroom
12. Emmitt Foster May 3, 1995 Travis Walker
13. Larry Griffin June 21, 1995 Quintin Moss
14. Robert Anthony Murray July 26, 1995 Jeffrey Jackson and Craig Stewart
15. Robert T. Sidebottom November 15, 1995 Mary Sidebottom.
16. Anthony Joe Larette November 29, 1995 Mary Fleming
17. Robert Earl O'Neal December 6, 1995 Arthur Dale.
18. Jeffrey Paul Sloan February 21, 1996 Jason Sloan
19. Doyle James Williams April 10, 1996 A. H. Domann
20. Emmett Clifton Nave July 31, 1996 Geneva Roling
21. Thomas Henry Battle August 7, 1996 Birdie Johnson
22. Richard Oxford August 21, 1996 Harold Wampler and Melba Wampler
23. Richard Steven Zeitvogel December 11, 1996 Gary Wayne Dew
24. Eric Adam Schneider January 29, 1997 Richard Schwendeman and Ronald Thompson
25. Ralph Cecil Feltrop August 6, 1997 Barbara Ann Roam
26. Donald Edward Reese August 13, 1997 James Watson, Christopher Griffith, John Buford, and Don Vanderlinden
27. Andrew Wessel Six August 20, 1997 Kathy Allen
28. Samuel Lee McDonald, Jr. September 24, 1997 Robert Jordan
29. Alan Jeffrey Bannister October 24, 1997 Darrell Ruestman
30. Reginald Love Powell February 25, 1998 Freddie Miller and Arthur Miller
31. Milton Vincent Griffin-El March 25, 1998 Jerome Redden
32. Glennon Paul Sweet April 22, 1998 Missouri State Trooper Russell Harper
33. Kelvin Shelby Malone January 13, 1999 William Parr (he was also sentenced to death by the state of California)
34. James Edward Rodden, Jr. February 24, 1999 Terry Trunnel and Joseph Arnold
35. Roy Michael Roberts March 10, 1999 Correctional officer Tom Jackson
36. Roy Ramsey, Jr. April 14, 1999 Garnett Ledford and Betty Ledford
37. Ralph E. Davis April 28, 1999 Susan Davis
38. Jessie Lee Wise May 26, 1999 Geraldine McDonald
39. Bruce Kilgore June 16, 1999 Marilyn Wilkins
40. Robert Allen Walls June 30, 1999 Fred Harmon
41. David R. Leisure September 1, 1999 James A. Michaels, Sr
42. James Henry Hampton March 22, 2000 Frances Keaton
43. Bart Leroy Hunter June 28, 2000 Mildred Hodges and Richard Hodges
44. Gary Lee Roll August 30, 2000 Sherry Scheper, Randy Scheper and Curtis Scheper
45. George Bernard Harris September 13, 2000 Stanley Willoughby
46. James Wilson Chambers November 15, 2000 Jerry Lee Oestricker Roger B. Wilson
47. Stanley Dewaine Lingar February 7, 2001 Thomas Scott Allen
48. Tomas Grant Ervin March 28, 2001 Mildred Hodges and Richard Hodges
49. Mose Young, Jr. April 25, 2001 Kent Bicknese, James Schneider and Sol Marks
50. Samuel D. Smith May 23, 2001 Marlin May
51. Jerome Mallett July 11, 2001 Missouri State Trooper James F. Froemsdorf
52. Michael S. Roberts October 3, 2001 Mary L. Taylor
53. Stephen K. Johns October 24, 2001 Donald Voepel
54. James R. Johnson January 9, 2002 Deputy Sheriff Leslie B. Roark, Pam Jones, Charles Smith, Sandra Wilson
55. Michael I. Owsley February 6, 2002 Elvin Iverson
56. Jeffrey Lane Tokar March 6, 2002 Johnny Douglass
57. Paul W. Kreutzer April 10, 2002 Louise Hemphill
58. Daniel Anthony Basile August 14, 2002 Elizabeth DeCaro
59. William Robert Jones, Jr. November 20, 2002 Stanley Albert
60. Kenneth Kenley February 5, 2003 Ronald Felts
61. John Clayton Smith October 29, 2003 Brandie Kearnes and Wayne Hoewing
62. Stanley L. Hall March 16, 2005 Barbara Jo Wood
63. Donald Jones April 27, 2005 Dorothy Knuckles
64. Vernon Brown May 17, 2005 Janet Perkins Synetta Ford
65. Timothy L. Johnston August 31, 2005 Nancy Johnston
66. Marlin Gray October 26, 2005 Julie Kerry and Robin Kerry
67. Dennis James Skillicorn May 20, 2009 Richard Drummond
68. Martin C. Link February 9, 2011 Elissa Self
69. Joseph Paul Franklin November 20, 2013 Gerald Gordon
70. Allen L. Nicklasson December 11, 2013 Richard Drummond
71. Herbert L. Smulls January 29, 2014 Stephen Honickman
72. Michael Anthony Taylor February 26, 2014 Ann Harrison
73. Jeffrey R. Ferguson March 26, 2014 Kelli Hall
74. William Rousan April 23, 2014 Charles and Grace Lewis
75. John Winfield June 18, 2014 Shawnee Murphy and Arthea Sanders
76. John Middleton July 16, 2014 Randy "Happy" Hamilton, Stacey Hodge, Alfred Pinegar
77. Michael Shane Worthington August 6, 2014 Melinda “Mindy” Griffin
78. Earl Ringo Jr. September 10, 2014 JoAnna Marie Baysinger, Dennis L. Poyser
79. Leon Vincent Taylor November 19, 2014 Robert Leroy Newton
FN2. Summarized from Taylor's original appeal, State v. Taylor, 944 S.W.2d 925 (Mo. banc 1997).