"University City man is executed for two murders." (June 18, 2014 12:30 am • Associated Press)

BONNE TERRE, Mo. • A Missouri inmate has been put to death for killing two St. Louis County women in 1996, marking the state's fifth execution this year. A corrections spokesman said John Winfield, of University City, died early Wednesday at the state prison in Bonne Terre. Winfield took four or five deep breaths as the drug was injected, puffed his cheeks twice and then fell silent, all in a matter of a few seconds.

His execution came shortly after convicted killer Marcus Wellons was put to death in Georgia. Wellons' was the first execution in the nation since a botched execution on April 29 in Oklahoma raised new concerns about lethal injection. Another convicted killer, John Ruthell Henry, is scheduled to die later today in Florida.

Winfield went to his ex-girlfriend’s apartment in the 8100 block of Page Avenue in Vinita Park on Sept. 9, 1996. The ex-girlfriend, Carmelita Donald, was on a date. He confronted her when she got home. Then he fatally shot two friends of Donald and shot her multiple times, leaving her blinded.

A statement issued by Attorney General Chris Koster after the execution said: “Nearly two decades have passed since John Winfield’s cowardly acts of rage and jealously changed the lives of three families forever. He brutally murdered two defenseless young women, one in front of her children, and attempted to murder the mother of his own children, leaving her permanently disabled. For his actions, a court lawfully sentenced him to death under Missouri law, and tonight that sentence has been carried out.”

A federal judge had granted a stay of Winfield's execution on Friday, ruling that a prison worker dropped plans to write a letter in support of clemency due to intimidation from staff. The Attorney General's Office appealed. The stay was lifted Tuesday by the 8th U.S. Circuit Court of Appeals.

ReutersNews

(Reuters) - A man sentenced to death for the 1996 murder of two friends of his ex-girlfriend lost his bid for an 11th-hour reprieve from the U.S. Supreme Court, clearing the way for the state to carry out his execution by lethal injection early on Wednesday. The high court in Washington rejected four separate applications for a stay of execution filed late on Tuesday by attorneys for John Winfield, 43, hours after a federal appeals court vacated a lower-court order blocking the death sentence.

U.S. District Court Judge Catherine Perry of St. Louis had issued the stay and a preliminary injunction on June 12 based on allegations by Winfield's attorneys that state corrections officials intimidated and threatened a prison employee who was supportive of an application by Winfield for clemency. A panel of the 8th U.S. Circuit of Appeals initially upheld Perry's ruling on Monday, but reconsidered on appeal by Missouri officials and sided with the state on Tuesday.

Defense attorney Joseph Luby said after the Supreme Court ruling that Winfield's lawyers had no further legal actions to take. Winfield was set to be put to death at 12:01 a.m. local time (0501 GMT) on Wednesday, in what would be the second U.S. execution since a botched lethal injection in Oklahoma in April.

Georgia inmate Marcus Wellons, 58, was executed Tuesday night for the 1989 rape and strangulation of his 15-year-old neighbor, India Roberts, whom he abducted as she walked to a school bus stop. The Supreme Court denied his requests for a stay on Tuesday night, a short time before rejecting Winfield's bid for a reprieve. Capital punishment in the United States came under renewed debate and scrutiny since April 29, when Oklahoma killer and rapist Clayton Lockett suffered an apparent heart attack about 30 minutes after prison officials had halted his execution because of problems in administering his lethal injection.

In Winfield’s case, his lawyers have argued in court filings that the state's secrecy about where it gets its lethal injection drugs and how they are made were grounds for a stay. Winfield was sentenced to die in 1998 after first-degree murder and assault convictions stemming from a September 1996 rampage in which he attacked an ex-girlfriend, leaving her blind and disfigured, and killed two of her friends.

Murderpedia

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State of Missouri vs. John E. Winfield
Missouri Supreme Court Case Number SC81165
Case Facts:

In September 1996, John E. Winfield lived in a St. Louis County home one block from a second floor apartment where his ex-girlfriend and mother of his children, Carmelita Donald, lived. Living with Carmelita and her children were Carmelita's sister, Melody Donald, and friend Arthea Sanders. In the apartment below them lived their friend, Shawnee Murphy, and her three children. Winfield began dating Carmelita in 1989 and continued to have an on-and-off relationship with her through the spring of 1996. During that time, they had two children over whom they shared physical custody. In the late summer of 1996, Carmelita began dating Tony Reynolds. They succeeded in keeping that relationship a secret from Winfield for about a month.

On the night of September 9, 1996, Carmelita went out for the evening with Reynolds. Meanwhile, Winfield began making a series of calls to Carmelita's apartment asking Melody about her sister's whereabouts and instructing her to have Carmelita call him when she returned home. Melody told Winfield that she did not know where Carmelita was. Around midnight, Carmelita returned to the apartment with Tony Reynolds. They saw Winfield's white Cadillac parked in front. To avoid trouble with Winfield, they drove to Reynolds' female cousin's house. There they persuaded her to drive Carmelita home. When the two women arrived back at Carmelita's apartment, Winfield's car was still there.

As Carmelita started to climb the stairs to her apartment, Winfield came down, said he needed a word, and pushed her down the stairs. They walked outside, and Winfield asked Carmelita about her relationship with Tony Reynolds. Meanwhile, Arthea walked outside and slashed the tires on Winfield's car. Upon her return to the downstairs apartment, Arthea told Melody to call the police and yelled outside, asking Carmelita if she was alright. Carmelita said she was fine. Despite Arthea's request, Melody did not call the police.

A car door "slammed" shut. Melody assumed it was Winfield leaving. However, Winfield had run into the downstairs apartment, Carmelita in pursuit. From outside, she warned Arthea to run because Winfield was armed and coming to get her. Winfield entered Shawnee's downstairs apartment and began chastising Arthea. He then shot her in the head. Then he walked outside and pointed the gun at Carmelita. Carmelita pleaded with him to no avail; he shot her several times. Although permanently blinded, Carmelita survived.

Meanwhile, Melody and James ran into Shawnee's kitchen, hoping to escape through the back door. The door was jammed and would not open. Shawnee, while attempting to collect her children, began pleading with Winfield. Winfield shot her in the head. Next, Winfield turned and pointed the gun at Melody. She fell to the floor. Winfield pointed the gun at James and said, "[Y]ou next." James grabbed the gun, and he began wrestling with Winfield. During this time, James heard the gun "click." Winfield broke free and struck James with the gun. Winfield fled, and James attempted to follow. Melody escaped while James struggled with Winfield and ran to a neighbor's house to call the police. An officer with the University City Police Department arrested Winfield at his home. Both Arthea Sanders and Shawnee Murphy died as a result of their wounds.

MissouriDeathRow.Com

Missouri.Net

Missouri has carried out the execution of 46-year-old John Winfield for the murders of two women in St. Louis County 18 years ago. Winfield received a lethal injection of pentobarbital at 12:01 Wednesday morning and was pronounced dead at 12:10. Winfield appeared to tell the witnesses that were there for him, “I love you,” after the curtains were opened to the execution chamber. After the 5 grams of the drug was administered, Winfield took a series of deep breaths and then stopped moving. The execution appeared to take less than a minute.

Winfield declined to make a final statement and did not accept food prior to the execution. His body was released to one of his attorneys. The execution was witnessed by five members of the family of one of the women he killed, Shawnee Murphy, as well as his ex-girlfriend Carmelita Donald whom he shot four times leaving her blind, three members of her family, his mother, his daughter, and two of his friends. There were no representatives present of the other woman he fatally shot, Arthea Sanders. Winfield is the seventh man executed in Missouri since November, and the seventh since the state began using pentobarbital compounded by a pharmacy that the Department of Corrections will not officially confirm the identity of.

Winfield’s execution proceeded after the United States Supreme Court declined two applications for stays filed by his attorneys. One asked for a stay until the resolution of an appeal Winfield had pending in the 8th Circuit Court of Appeals related to Missouri’s execution protocol. The other had asked the Court to stay his execution while it reviewed the 8th Circuit Court’s records and considered his argument that consideration of his petition for clemency was interfered with by Department of Corrections officials.

A short time later, Governor Jay Nixon (D) denied Winfield’s petition for clemency. In a statement, Nixon wrote, “John Winfield’s violent rampage on the night of Sept. 9, 1996, left two women dead and another permanently blinded. The two murder victims, Arthea Sanders and Shawnee Murphy, were killed while trying to help Carmelita Donald escape from the armed Winfield. Carmelita Donald herself was shot and permanently blinded by Winfield, who showed no mercy that night on his victims. The jury in this case properly found that these heinous crimes warranted the death penalty, and my denial of clemency upholds the jury’s decision. “I ask that the people of Missouri remember the victims of John Winfield, both those who were killed and those who survived, and keep them and their families in their thoughts and prayers.”

After the execution was carried out, Attorney General Chris Koster also issued a statement. He writes, “Nearly two decades have passed since John Winfield’s cowardly acts of rage and jealously changed the lives of three families forever. He brutally murdered two defenseless young women, one in front of her children, and attempted to murder the mother of his own children, leaving her permanently disabled. For his actions, a court lawfully sentenced him to death under Missouri law, and tonight that sentence has been carried out.”

Ahead of Winfield’s lethal injection, Missouri was again the subject of national attention for its executions. It was one of three executions scheduled to take place within 24 hours of one another from Tuesday to Wednesday evening. It became the second execution since one widely regarded as “botched” in Oklahoma; that of Clayton Lockett in April. An independent autopsy has revealed that the execution team there failed to set a properly functioning intravenous tube in Lockett’s leg. He died of a heart attack 43 minutes after the first drugs were administered.

A condemned Georgia inmate, Marcus Wellons, was executed late Tuesday night by lethal injection for the 1989 rape and murder of a 15-year-old girl. In Florida, John Ruthell Henry is scheduled to be executed Wednesday evening for murdering his wife in 1985.

Missouri Attorney General

Wednesday, June 18, 2014

Attorney General Chris Koster made the following statement after the execution of John Winfield: "Nearly two decades have passed since John Winfield's cowardly acts of rage and jealously changed the lives of three families forever. He brutally murdered two defenseless young women, one in front of her children, and attempted to murder the mother of his own children, leaving her permanently disabled. For his actions, a court lawfully sentenced him to death under Missouri law, and tonight that sentence has been carried out."

Springfield News Leader

"Missouri man executed by lethal injection," by Jim Salter (AP 12:29 a.m. CDT June 18, 2014)

ST. LOUIS – Death row inmates in Missouri and Georgia were put to death in the first lethal injections since a botched execution in Oklahoma nearly two months ago, and a Florida prisoner is scheduled to be executed today. All three states refuse to say where they get their drugs, or if they are tested. Lawyers for two of the condemned inmates have challenged the secretive process used by some states to obtain lethal injection drugs from unidentified, loosely regulated compounding pharmacies.

Nine executions nationwide have been stayed or postponed since late April, when Oklahoma prison officials halted the execution of Clayton Lockett after noting that the lethal injection drugs weren't being administered into his vein properly. Lockett's punishment was halted and he died of a heart attack several minutes later. "I think after Clayton Lockett's execution everyone is going to be watching very closely," Fordham University School of Law professor Deborah Denno, a death penalty expert, said of this week's executions. "The scrutiny is going to be even closer."

In Missouri, John Winfield was executed at 12:01 a.m. today. The U.S. Supreme Court refused late Tuesday to halt his execution, and moments later, Missouri Gov. Jay Nixon denied clemency.

In Georgia, 59-year-old Marcus Wellons was executed by lethal injection late Tuesday after last-minute appeals to the U.S. Supreme Court were denied. A corrections official said he was pronounced dead at 11:56 p.m. The execution seemed to go smoothly with no noticeable complications.

John Ruthell Henry's execution is scheduled for tonight in Florida.

Georgia and Missouri both use the single drug pentobarbital, a sedative. Florida uses a three-drug combination of midazolam hydrochloride, vecuronium bromide and potassium chloride. Despite concerns about the drugs and how they are obtained, death penalty supporters say all three convicted killers are getting what they deserve.

In Missouri, Winfield had been dating Carmelita Donald on and off for several years and fathered two of her children. Donald began dating another man. One night in 1996, in a jealous rage, Winfield showed up outside Donald's apartment in St. Louis County and confronted her, along with two friends of hers. Winfield shot all three women in the head. Arthea Sanders and Shawnee Murphy died. Donald survived but was blinded.

Florida and Missouri trail only Texas as the most active death penalty states. Texas has carried out seven executions. Florida has executed five men in 2014 and Missouri has executed four. Combined, the three states have performed 16 of the 20 executions this year.

Daily Mail Online

"Missouri executes inmate for killing 2 women." (AP 03:10 EST, 18 June 2014)

BONNE TERRE, Mo. (AP) — A Missouri inmate was put to death early Wednesday for killing two St. Louis County women in 1996, marking the state's fifth execution this year. John Winfield was executed at the state prison in Bonne Terre by lethal injection at 12:01 a.m. and was pronounced dead at 12:10 a.m., a spokesman for the Department of Public Safety said. Winfield, 46, took four or five deep breaths as the drug was injected, puffed his cheeks twice and then fell silent, all in a matter of a few seconds.

Winfield shot Carmelita Donald, his ex-girlfriend and the mother of two of his children, in the head, leaving her blind. He also shot and killed two of her friends, Arthea Sanders and Shawnee Murphy. Winfield declined to make a final statement or eat a final meal. Donald was among those witnessing the execution. She and other witnesses declined to comment.

Winfield's execution came shortly after convicted killer Marcus Wellons was put to death in Georgia. Wellons' execution was the first in the nation since a botched execution on April 29 in Oklahoma raised new concerns about lethal injection.

Winfield's attorneys had appealed to the U.S. Supreme Court over concerns that a prison worker dropped plans to write a letter in support of clemency due to intimidation from staff, and over concerns about the secretive process Missouri uses to obtain its lethal injection drug. But the Supreme Court refused late Tuesday to halt the execution, and moments later, Gov. Jay Nixon denied clemency.

Missouri Attorney General Chris Koster issued a statement after the execution, saying that: "Nearly two decades have passed since John Winfield's cowardly acts of rage and jealously changed the lives of three families forever. ... For his actions, a court lawfully sentenced him to death under Missouri law, and tonight that sentence has been carried out."

ProDeathPenalty.Com

In September of 1996, Carmelita Donald, a surviving victim in this case, lived in a second floor apartment at 8100 Page in St. Louis County with her sister, Melody Donald. Shawnee Murphy, one of the murder victims in this case, lived downstairs from Melody and Carmelita along with her three children. Arthea Sanders, the other murder victim in this case, also lived downstairs. Carmelita and Melody became friends with Shawnee and Arthea and, after a while, Arthea moved upstairs and began living with Melody and Carmelita.

Carmelita and John Winfield met in 1987, when Carmelita was still in high school; she later began dating Winfield and then moved in with him. They had two children together, 8-year-old Mykale Donald, and 6-year-old Symone Winfield. Both Carmelita and Melody used to live with Winfield and his family at various different locations. Carmelita and Winfield had a difficult relationship, though, so Carmelita broke it off with Winfield and she and Melody moved out of Winfield's family’s home; in the Spring of 1996, Carmelita and Melody moved in together at the apartment on Page. Winfield lived in a house on Liberty, along with his family, that was about a block from Carmelita and Melody’s apartment on Page. Because of their proximity, Carmelita and Winfield shared physical custody of their children.

On September 9, 1996, Carmelita went out for the evening with a man named Tony Reynolds. Winfield did not know about Carmelita’s relationship with Tony. Carmelita and Tony decided that they both wanted to tell Winfield, at some point, about their involvement. Between 10:00 and 11:00 pm that night, Melody received several calls from Winfield inquiring about Carmelita. Winfield first called and wanted to know where Carmelita was. Melody told Winfield she did not know where her sister was. Winfield called again and told Melody to tell Carmelita not to call him. Then, Winfield called a third time and instructed Melody to have Carmelita call him as soon as she got home. Winfield then came over to Carmelita and Melody’s apartment. Winfield asked where Carmelita was and made a telephone call. Melody repeated that she did not know where her sister was. Winfield lingered at the apartment for about ten to fifteen minutes, then left, only to return about ten minutes later.

When he came back, Winfield was following Arthea Sanders, who went into the apartment she shared with Carmelita and Melody. Again, Winfield asked where Carmelita was. Melody reiterated that she did not know. Melody learned that Carmelita was out with a man named Tony Reynolds. Arthea and Melody decided to lie to Winfield and tell him that Carmelita was at Arthea’s mother’s house. Arthea and Melody believed that this explanation would appease Winfield, who was already upset, and cause him to leave. Melody decided to go downstairs to Shawnee’s apartment to telephone Arthea’s parents to let them know that they had told Winfield that Carmelita was at the Sanders’ house. Shawnee was at her apartment with her three sleeping children and a guest, James Johnson. While Melody was downstairs in Shawnee’s apartment, she heard a crash upstairs. Melody returned to her apartment to find that Winfield had knocked over and broken the entertainment center. Winfield said he needed to talk to Melody and asked how she could do this to him. Melody had no idea what Winfield was talking about.

Melody returned to Shawnee’s apartment and said that Winfield was angry because Carmelita was not there and was upstairs turning over furniture. Melody and Shawnee went upstairs, then returned downstairs along with Winfield. Winfield asked Shawnee where Carmelita was; Shawnee said she did not know. Winfield did not believe Shawnee, and claimed that Shawnee knew where Carmelita was, and promised to “kick Carmelita’s ass” when she returned home. Carmelita, meanwhile, returned around midnight, along with Tony Reynolds, to the area of her apartment at Page and Midland; she noticed Winfield’s white Cadillac automobile. Tony said he would take Carmelita to his female cousin Jarita’s house and have Jarita take her back home “so it won’t be no shit started”. Carmelita agreed. Tony’s cousin, Jarita, gave Carmelita a ride home.

Carmelita went into her apartment building and found Winfield waiting there for her. Winfield confronted Carmelita, said he needed to talk to her, and pushed her down the steps and outside to a nearby parking lot. Winfield said, “I have just one question to ask you, and that’s are you fu**ing with that ni**er Tony?”. Carmelita acted like she did not know what Winfield was talking about, but Winfield persisted. Carmelita then asked if Winfield was talking about her brother, who was also named Tony, but Winfield said, “Nah, you know I ain’t talking about him”. Carmelita kept denying that she was involved with Tony Reynolds, but Winfield insisted, “Well, she ain’t going to lie”. Carmelita asked who “she” was, but Winfield would not say.

Meanwhile, while Winfield and Carmelita were outside talking, Melody and Shawnee were downstairs in Shawnee’s apartment; Arthea, though, went outside. Melody then heard a sound like air coming out of a tire; Arthea had slashed a tire on Winfield’s car. Arthea then returned inside. Arthea instructed Melody to call the police and yelled outside to Carmelita to see if she was all right. Carmelita assured Arthea that she was fine. Carmelita then heard something hit Winfield’s car. Melody heard a car door slam; she decided not to call police because she believed that the slamming of the car door meant that Winfield was leaving. Winfield, however, ran into the apartment building. Carmelita followed. Melody heard Carmelita tell Arthea that he was coming to get her, to run, and that he had a gun; she then heard Arthea running. Winfield entered Shawnee’s apartment and said something like, “You don’t have nothin’ to do with this” or “You think that’s funny” or “It’s all your fault, bi+ch” and shot Arthea in the head. Arthea was unarmed.

Winfield then turned the gun on Carmelita. Carmelita pleaded with him, but Winfield said “F**k you, bitch” and pulled the trigger. He shot her numerous times. Both Carmelita and Melody had seen Winfield with the gun he used in the past. The last thing Carmelita remembered was seeing Winfield’s face and the flash from the gun; the next thing she remembered was waking up in the hospital. Melody and James ran into the kitchen and tried to escape out the back door of Shawnee’s apartment but it was jammed.

Shawnee, meanwhile, tried to get her kids, but Winfield shot her, too. Shawnee had pleaded with him, saying, “my babies” and “No, Johnny, no,” but Winfield said, “Shut the f**k up, bitch” and shot her. Winfield turned towards Melody; and she dropped to the floor. Winfield then turned to James, pointed the gun at him, and said, “You next”. James grabbed the gun and the two men struggled. While James wrestled with Winfield over the gun, James heard the gun click. Winfield hit James with the gun. James was able to break free and run. Melody was also able to escape and she ran to a neighbor’s house and called police.

Officer Thomas Crowley, with the Vinita Park Police Department, was dispatched to the scene at 8100 Page. Officer Crowley entered the residence and found Carmelita. He asked her who shot her, but she did not respond. He found two small children on a bed in Shawnee’s living room. He also found Arthea and Shawnee. Arthea had a facial wound and was not breathing, nor did she have a pulse. Shawnee had a chest wound; like Arthea, she had no vital signs, pulse, or respiration. Officer Crowley spoke with Melody, who named Winfield as the gunman. Officer Crowley determined that Winfield lived at 7517 Liberty, a block from the crime scene, and asked University City Police to be on the lookout for Winfield. Officer Thomas Carney, with the University City Police Department, was assigned to arrest Winfield.

On September 10th , Officer Carney went to Winfield’s home at 7517 Liberty to take him into custody. Officer Carney arrested Winfield and booked him at the police station. While booking Winfield, Officer Carney advised Winfield of his rights and Winfield said he understood those rights. Officer Carney then asked Winfield what he did with the gun. Winfield said he threw it into a creek. Winfield said that the creek was off of Vernon near Pennsylvania where a bridge was being built. Winfield did not ask Officer Carney about the condition of the victims.

After Winfield had been arrested, Lieutenant Michael Webb, with the Vinita Park Police Department, responded to Winfield’s home at 7517 Liberty to conduct a search for the weapon. Winfield’s 1992 Cadillac automobile was in the driveway; the right front tire was flat. Winfield’s mother consented to a search of the home and directed officers to Winfield’s basement bedroom. There, Lieutenant Webb found Winchester .380 caliber ammunition in a gym bag. Later, Lieutenant Webb was informed that Winfield had admitted that he threw the gun in a creek. Lieutenant Webb arranged to have that area searched, but no gun was ever found in the location that Winfield had specified.

John Kaltenbronn, a firearms examiner with the St. Louis County Police Department Laboratory, analyzed the ballistics evidence in this case. He received six spent shell casings recovered from the scene and five projectiles — four from the scene and one which was recovered during the autopsy of Shawnee Murphy. Kaltenbronn found that the projectiles were all .380/9mm caliber and they had 6 lands and grooves with a left hand twist. Kaltenbronn concluded that all five projectiles were definitely fired from the same firearm and indicated that they were most likely fired from a Davis. 380. Kaltenbronn explained that a Davis .380 automatic had a magazine that would hold five bullets; the gun would hold six bullets if one were to chamber a round and top off the magazine. Kaltenbronn also explained that a Davis .380 automatic would require six trigger pulls to fire the gun six times.

Dr. Eric Sherburn, a neurosurgeon, treated Carmelita Donald. She suffered multiple gunshot wounds. When she arrived at the emergency room, she was comatose. Her most serious injury was a gunshot wound to the head, with the entry wound being in the right temporal region, and the exit wound being on the opposite side of her head. She also suffered gunshot wounds underneath her chin, to her shoulder and to her hand. Carmelita needed to have emergency brain surgery because of a bruise behind her left eye. She also had to have a surgical tracheostomy because her chin was so severely damaged that there was some concern as to whether she could breathe properly through her throat. Carmelita had to also undergo surgery to repair the damage to her jaw. She has a bullet that remains in her spine. As a result of the gunshot wound to her head, Carmelita was blinded. Her right eye was completely destroyed by the gunshot wound and had to be removed; the bullet severed the nerve that would have permitted her to have vision out of her left eye. Carmelita will never regain her sight, in either eye. At the time of trial, Carmelita was not working and was living with her children by Winfield and her mother.

In August, 1998, Carmelita was scheduled to attend a school so that she could learn how to live independently as a blind person. Dr. Mary Case, the chief medical examiner for St. Louis County, performed autopsies on both Arthea Sanders and Shawnee Murphy . Arthea was 20 years old. She suffered a gunshot wound to the face that entered just below the right eye. Because of the large amount of soot around the wound, Dr. Case was able to determine that the shot was fired from close range. This shot injured Arthea’s cerebellum which, in turn, caused her to stop breathing and led to her death. Shawnee Murphy was 23 years old. She suffered a gunshot wound to the chest, near her clavicle (Tr.812). The bullet passed through her pericardial sac, aorta, and pulmonary artery. This caused bleeding which compressed her heart and prevented it from beating; this is known as “tamponade”. She died from the gunshot wound to the chest and the resulting loss of blood and tamponade. Winfield testified in his own defense. Winfield said that Shawnee had told him that Carmelita was out with Tony Reynolds and that the tire on his car was cut.

Winfield claimed that he “just snapped” and then “all hell broke loose”. Winfield claimed, “I didn’t plan on hurting nobody”. He said he did not remember the shootings. He admitted that he lied to the police about his involvement, telling them at first that another man with a gun had entered the apartment building.

Following the guilt phase evidence, instructions, and arguments of counsel, Winfield’s jury found him guilty as charged. The state then adduced evidence in the penalty phase. The state first presented a certified copy of Winfield’s prior conviction for receiving stolen property. The state also adduced testimony from Carmelita Donald that Winfield had been violent towards her in the past, hitting her and giving her a black eye in 1992, and putting a gun to her head in 1993 until she submitted to his sexual demands. The state also called Arthea’s mother, Melody Sanders, and Shawnee’s mother, Gerry Murphy, as part of the penalty phase evidence. Winfield then presented evidence in mitigation of punishment by calling his father, step-mother, his brother, and a family friend from church.

At the close of the penalty phase evidence, instructions, and arguments of counsel, the jury recommended that Winfield be sentenced to death for the murders of Arthea Sanders and Shawnee Murphy. The jury found, as a basis for consideration of capital punishment, that the murder of Arthea Sanders was committed while the defendant was engaged in the commission of another unlawful homicide of Shawnee Murphy, and that the murder of Shawnee Murphy was committed while the defendant was engaged in the commission of another unlawful homicide of Arthea Sanders.

On September 18, 1998, the court sentenced Winfield, in accordance with the jury’s verdicts, to two death sentences for the murders of Arthea Sanders and Shawnee Murphy, a life sentence for assault in the first degree as to Carmelita Donald, fifteen years for assault in the first degree as to James Johnson, and four sentences of 75 years for each of four counts of armed criminal action.

UPDATE: John Winfield was executed by lethal injection just after midnight. Winfield appeared to tell the witnesses that were there for him, “I love you,” but declined to make a final statement. The execution was witnessed by five members of the family of one of the women he killed, Shawnee Murphy, as well as his ex-girlfriend Carmelita Donald whom he shot four times leaving her blind, and three members of her family. There were no representatives present of the other woman he fatally shot, Arthea Sanders.

Missourians to Abolish the Death Penalty

Missourians for Alternatives to the Death Penalty

Wikipedia

A total of 75 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
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 Arthea Sanders

State v. Winfield, 5 S.W.3d 505 (Mo. 1999). (Direct Appeal)

Defendant was convicted in the Circuit Court, St. Louis County, Maura McShane, J., of two counts of first-degree murder, two counts of first-degree assault, and four counts of armed criminal action, and was sentenced to death. Defendant appealed. The Supreme Court, Holstein, J., held that: (1) finding that venireperson should be stricken for cause based on her views on the death penalty was supported by evidence; (2) trial court's lack of specific findings regarding whether defendant's statements were knowingly, intelligently, and voluntarily given did not constitute plain error; (3) even if defendant were entitled to instruction on lesser-included offense of voluntary manslaughter, failure to give instruction was harmless; (4) trial court was not required to sever first degree murder charges from assault and armed criminal action charges; (5) evidence of two incidents for which defendant was never charged were relevant to punishment: (6) argument by state during penalty phase that defendant would have killed victim's children had he not run out of bullets did not constitute plain error; and (7) death sentence was not disproportionate. Affirmed.

JOHN C. HOLSTEIN, Judge.

Defendant, John Winfield, was convicted by a St. Louis County jury of two counts of first degree murder, two counts of first degree assault, and four counts of armed criminal action. The circuit court sentenced defendant to two death sentences, life and fifteen years, and four seventy-five year sentences for the crimes respectively. Defendant challenges his convictions. This Court has exclusive appellate jurisdiction. Mo. Const., art. V, sec. 3. The judgment is affirmed.

FACTS

This Court reviews the facts in the light most favorable to the verdict. State v. Clark, 981 S.W.2d 143, 145 (Mo. banc 1998). In September 1996, defendant lived in a St. Louis County home one block from a second floor apartment where his ex-girlfriend and mother of his children, Carmelita Donald, lived. Living with Carmelita and her children were Carmelita's sister, Melody Donald, and friend Arthea Sanders. In the apartment below them lived their friend, Shawnee Murphy, and her three children. Defendant began dating Carmelita in 1989 and continued to have an on-and-off relationship with her through the spring of 1996. During that time, they had two children over whom they shared physical custody. In the late summer of 1996, Carmelita began dating Tony Reynolds. They succeeded in keeping that relationship a secret from defendant for about a month. On the night of September 9, 1996, Carmelita went out for the evening with Reynolds. Meanwhile, defendant began making a series of calls to Carmelita's apartment asking Melody about her sister's whereabouts and instructing her to have Carmelita call him when she returned home. Melody told defendant that she did not know where Carmelita was.

Shortly thereafter, defendant went to the apartment and began inquiring further about Carmelita. Melody again replied that she did not know where Carmelita could be found. He made a phone call and left the apartment for approximately ten minutes. He returned with Arthea, who had been drinking. Once inside, he tried once more to find out where Carmelita had gone. One last time, Melody informed defendant that she did not know. At some point, Arthea, who knew Carmelita was out with Tony Reynolds, took Melody aside and told her where Carmelita was and to lie to defendant by telling him that Carmelita was at Arthea's mother's house. Apparently, the pair believed this would satisfy the already agitated defendant and get him to return home. Eventually, Melody went downstairs to Shawnee's apartment to call Arthea's parents to tell them of the story they had concocted. In Shawnee's apartment, Melody found Shawnee, her three children, and a guest, James Johnson. While there, Melody heard a crashing sound coming from her apartment upstairs. When she returned to the upstairs apartment, Melody found the entertainment center “knocked over” and broken. Defendant then asked Melody how she could do this to him. She denied knowing what he was talking about. Melody returned to Shawnee's apartment and reported that defendant was upstairs turning over furniture because he was angry about Carmelita being absent. The two women decided to go back upstairs. Defendant began pacing the apartment. He became increasingly agitated and angry, at one point making threats toward Carmelita.

Around midnight, Carmelita returned to the apartment with Tony Reynolds. They saw defendant's white Cadillac parked in front. To avoid trouble with defendant, they drove to Reynolds' female cousin's house. There they persuaded her to drive Carmelita home. When the two women arrived back at Carmelita's apartment, defendant's car was still there. As Carmelita started to climb the stairs to her apartment, defendant came down, said he needed a word, and pushed her down the stairs. They walked outside, and defendant asked Carmelita about her relationship with Tony Reynolds. Meanwhile, Arthea walked outside and slashed the tires on defendant's car. Upon her return to the downstairs apartment, Arthea told Melody to call the police and yelled outside, asking Carmelita if she was alright. Carmelita said she was fine. Despite Arthea's request, Melody did not call the police. A car door “slammed” shut. Melody assumed it was defendant leaving. However, defendant had run into the downstairs apartment, Carmelita in pursuit. From outside, she warned Arthea to run because defendant was armed and coming to get her. Defendant entered Shawnee's downstairs apartment and began chastising Arthea. He then shot her in the head. Then he walked outside and pointed the gun at Carmelita. Carmelita pleaded with him to no avail; he shot her several times. Although permanently blinded, Carmelita survived.

Meanwhile, Melody and James ran into Shawnee's kitchen, hoping to escape through the back door. The door was jammed and would not open. Shawnee, while attempting to collect her children, began pleading with defendant. Defendant shot her in the head. Next, defendant turned and pointed the gun at Melody. She fell to the floor. Defendant pointed the gun at James and said, “[Y]ou next.” James grabbed the gun, and he began wrestling with defendant. During this time, James heard the gun “click.” Defendant broke free and struck James with the gun. Defendant fled, and James attempted to follow. Melody escaped while James struggled with defendant and ran to a neighbor's house to call the police. An officer with the University City Police Department arrested defendant at his home. Both Arthea Sanders and Shawnee Murphy died as a result of their wounds.

At trial, a firearms examiner employed by the St. Louis County Police Department Crime Laboratory testified that he analyzed six spent shell casings and five recovered rounds from the crime scene and from the body of Shawnee Murphy. From his study of the casings and recovered bullets, the examiner concluded that they were most likely .380 caliber bullets fired by a Davis pistol. Furthermore, he explained, this weapon would hold six rounds if one was loaded into the chamber and the magazine was full. He further testified that when empty, pulling the trigger causes the gun to make a clicking sound.

Defendant testified in his own defense. He said that when he retrieved the gun from his car, he “just snapped.” He stated that he did not intend to hurt anyone. Defendant also testified that he did not even remember shooting either Shawnee or Carmelita. In addition, defendant maintained that his memory also failed him when trying to recall his fight with James Johnson.

The jury found defendant guilty on all counts. During the penalty phase, the jury recommended he be sentenced to death for the murders of Arthea Sanders and Shawnee Murphy. To sustain a sentence of death, the jury found that the murder of Shawnee Murphy was committed while defendant was engaged in the unlawful commission of another unlawful homicide, that of Arthea Sanders and vice-versa.

I.

Defendant argues that the trial court improperly sustained the state's motion to strike a venireperson for cause due to her views on capital punishment. He contends this deprived him of his rights to an impartial jury, due process, and freedom from cruel and unusual punishment under both the United States and Missouri Constitutions. The standard for reviewing the exclusion of a venireperson during the death-qualification phase of jury voir dire is whether the venireperson's views would prevent or substantially impair the performance of the duty as a juror in accordance with the instructions and the oath. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985); State v. Barnett, 980 S.W.2d 297, 303 (Mo. banc 1998), cert. denied, 525 U.S.1161, 119 S.Ct. 1074, 143 L.Ed.2d 77 (1999). This Court will not disturb the trial court's ruling on the qualification of a juror unless it is clearly against the evidence and is a clear abuse of discretion. Barnett, 980 S.W.2d at 303.

In this case, defendant argues the trial court abused its discretion because venireperson Stokes' initial reluctance to consider the death penalty was somehow eliminated or overshadowed by her willingness to follow the court's instructions and to follow the law. When the prosecution asked Stokes whether she could consider both life without parole and the death penalty, she replied, “That's tough.” The record further reveals:

[PROSECUTION]: It's not supposed to be an easy decision. STOKES: I probably would have to say no. * * * STOKES: No. No. I'm a nurse. I been [sic] a nurse for 35 years. It would be extremely difficult for me under any circumstance cause [sic] I spent my life taking care of people. To say that I could impose the death penalty, I just don't think I could. * * * Defendant, however, claims Stokes' later responses indicate a willingness to impose the death penalty. [DEFENSE COUNSEL]: Nothing. All that you have to do is to be able to give meaningful consideration to that and life without parole. Can you give meaningful consideration and follow the [c]ourt's instructions? STOKES: I believe I could. [DEFENSE COUNSEL]: All right. And you can follow the law in the case, is that correct? STOKES: Um-hum. * * * [DEFENSE COUNSEL]: All right. And then finally, in my death penalty case there will be – well, let me put it this way: if on Saturday morning as Ms. Constantin's saying, she believes she's going to be up here asking for the death penalty. Is there anyone that feels just because we've gotten that far that the imposition of the death penalty must then follow? Another way, Ms. Brown, if we get to the second stage you don't believe that automatically is the death penalty? BROWN: I would consider both. DEFENSE COUNSEL: And Ms. Stokes, you would consider both? STOKES: Yes.

The most that may be said of Stokes' voir dire is that she would “consider” the death penalty along with life imprisonment, and also she was not compelled to give the death penalty. Those answers fall short of recanting her earlier direct statement that “I just don't think I could” impose the death penalty. When the state moved to strike Stokes for cause, the transcript read as follows:

PROSECUTION: I would just state that she is one of those people caught up in the “I can follow the law” without really understanding what we're saying by “the law,” and then when you actually ask her if she can consider the death penalty she can't consider the death penalty. DEFENSE COUNSEL: Judge, I think it was the other way around. When asked what your personal opinion is you can get almost anyone to say I'm for or against the death penalty, but the ultimate question is whether they can set that aside and then follow the law. THE COURT: It is, but, you know, at the very beginning she made a point about being a nurse and that she felt she couldn't. I felt that she was very strong on that, so I'm going to strike her for cause.

The applicable standard does not require that a juror's bias be proven with “unmistakable clarity.” Witt, 469 U.S. at 424, 105 S.Ct. 844. It is sufficient that the record reflects evidence that the prospective juror's ability to impose the death penalty is substantially impaired. Id. Thus, the record does not reflect an abuse of discretion by the trial court on this issue. The claim is denied.

II.

Defendant claims the trial court failed to make sufficient fact findings regarding the nature of his confession to police. Specifically, he states the trial court should have made findings about whether his statements were made knowingly, intelligently, and voluntarily. Defendant did not question the trial court's failure to make findings in his motion for a new trial. In order to preserve an issue for appeal, it must also be presented in the motion for new trial. Rule 29.11(d). Since defendant did not preserve the issue, review is limited to a plain error standard. Rule 30.20. In its order overruling defendant's motion to suppress the statements, the court stated, “Cause called. Evidence adduced. Defendant's motions to suppress evidence, identification and statements are heard and over-ruled.” While this Court has insisted upon the requirement that the record be clear that the trial court did make such findings regarding a defendant's statement, it has refused to make this a formal requirement. State v. Knese, 985 S.W.2d 759, 767 (Mo. banc 1999, cert. denied, 526 U.S. 1136, 119 S.Ct. 1814, 143 L.Ed.2d 1017 (1999)). The only prerequisite is that the trial court's conclusions make unmistakably clear that the confession is voluntary. State v. Schnick, 819 S.W.2d 330, 336 (Mo. banc 1991). Moreover, the sufficiency of the court's findings need not be determined solely from the dispositive order. The whole record may be considered. State v. Hull, 595 S.W.2d 49, 53 (Mo.App.1980).

Defendant relies on State v. Bittick, 806 S.W.2d 652 (Mo. banc 1991), to argue the lack of specific findings warrants at the least a remand to determine the knowing, intelligent, and voluntary nature of any waiver on, in the alternative, a new trial. In Bittick, the Court remanded for a determination of whether the defendant's confession was knowing and intelligent. Bittick claimed that intoxication, lack of education, and delirium tremens diminished his ability to give a constitutionally valid waiver of his rights. In this context, the trial court found only that Bittick's statement was “freely and voluntarily given.” Based on the record and the incomplete ruling made by the trial judge, it was unclear whether the trial judge believed the waiver was “knowing and intelligent.”

In the case at bar, the arresting officer Mirandized defendant who then indicated that he understood his rights. The officer then asked him what he had done with the gun. Defendant replied that he had thrown it in a creek. After being processed at the police department, another officer again Mirandized defendant. Again, defendant acknowledged his understanding of his rights. Furthermore, the officer had defendant initial each point on the Miranda form as they proceeded through it, had him sign it, witnessed it with another officer, and defendant circled “yes” under the question “do you wish at this time to talk or give a statement.” Defendant does not suggest that intoxication or mental incapacity inhibited the validity of his confession. Defendant points out that the officer failed to videotape or audiotape his confession and did not obtain a signed written waiver. While no tape audio or video was made, a more careful reading of the motion hearing transcript refutes the latter. Additionally, he notes, this particular officer had never before conducted a murder interrogation, as if somehow this calls for additional safeguards to ensure a knowing, intelligent, and voluntary waiver. This is not the case. There is no requirement that an officer receiving a waiver of Miranda rights have prior experience in homicide investigation. If one is informed of the right to remain silent under Miranda, understands the right to remain silent under Miranda, and thereafter makes voluntary statements, it is absurd to say that such person has not made a knowing and intelligent waiver of his right to remain silent. Schnick, 819 S.W.2d at 336. Clearly, the record reflects the constitutional validity of defendant's waiver. Unlike Bittick, nothing in the record suggests a coerced or uninformed waiver or that the trial judge did not believe the waiver was knowing, intelligent and voluntary. The trial court's failure to specifically announce its findings in more detail constitutes no more than harmless error. No plain error exists on this issue.

III.

Defendant next challenges the adequacy of the jury instructions. First, he believes the trial court should have submitted instructions on the lesser included offense of voluntary manslaughter for the two homicide counts. In failing to do so, he maintains, his due process rights and right to be free from cruel and unusual punishment were violated. Rule 30.06(e) requires that the refused instruction be set forth in the argument portion of the brief. It has not been. Instead, defendant states that a certified copy of an affidavit from the St. Louis County Circuit Court legal counsel was filed with this Court indicating that a search for Instructions A and B was conducted. In his brief, defendant reproduces MAI–Cr3d 313.08. The state suggests that no such instructions were even submitted to the trial court. During the jury instructions conference the record reveals:

[DEFENSE COUNSEL]: ... It's my understanding that the [C]ourt will mark as refused Instruction A, the [V]oluntary manslaughter that applies to [C]ount 1, and will mark as refused Instruction B the [V]oluntary manslaughter instruction as to [C]ount 3. And I will, for the record, make sure that the [C]ourt has a hard copy of that at some time as soon as possible. * * * THE COURT: And I was going to ask you that, but I wanted to make sure of the written copy, because technically you are supposed to have the written copy, and you will submit it to me before the case is completed, correct? Well, let me ask it to you, can you submit it to me later on this week? [DEFENSE COUNSEL]: Hopefully I can submit it to you as soon as we're done with the closing argument. THE COURT: That's fine. That's what I mean. That's fine....

Assuming arguendo that these two instructions were submitted to the circuit court and refused, the trial court's refusal may be reviewed where the rejected instructions were pattern instructions. State v. Hopson, 891 S.W.2d 851, 852 (Mo.App.1995).

To support his point of error, defendant offers the fact that he was angry about being misled about Carmelita's whereabouts and discovering her relationship with Tony Reynolds. He contends this anger was exacerbated by Arthea slashing the tires on his car. This, he submits, provides the evidence of sudden passion sufficient to require a voluntary manslaughter instruction. A voluntary manslaughter instruction is authorized where the circumstances would constitute murder in the second degree except the accused caused the death under a sudden passion arising from adequate cause. Sec. 565.023.1. FN1 “Adequate cause” means cause that would reasonably produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an ordinary person's capacity for self control. State v. Redmond, 937 S.W.2d 205, 208 (Mo. banc 1996). It is doubtful that a person of ordinary temperament would be enraged to the point of killing two people and shooting a third multiple times under the facts here so as to entitle defendant to the voluntary manslaughter instruction. Regardless, the jury received an instruction on conventional second degree murder that offered the jury an option to find defendant guilty if it believed that all the elements of first degree murder had not been met. Since the jury convicted defendant of first degree murder on both homicide counts, as opposed to second degree murder, no reasonable basis exists to contend the jury would have found differently had voluntary manslaughter instructions been submitted. Barnett, 980 S.W.2d at 305–306 (Mo. banc 1998). The Court declines defendant's suggestion that State v. Smith, 781 S.W.2d 761 (Mo. banc 1989), rev'd. on other grounds, 495 U.S. 916, 110 S.Ct. 1944, 109 L.Ed.2d 306 (1990), which stands for the same point as the language cited from Barnett, supra, be reconsidered. The reasoning of both cases is sound. FN1. All references to statutes are to RSMO 1994, unless otherwise specified.

Next, defendant challenges the trial court's refusal to submit his Instruction C listing statutory and non-statutory mitigating circumstances. Failure to submit Instruction C, he argues, limited the jury's consideration of circumstances that call for a more lenient sentence. This issue has not been properly preserved for appeal as it was not included in defendant's motion for a new trial. Rule 29.11(d). Nevertheless, he seeks plain error review pursuant to Rule 30.20. The claim that a trial court's rejection of a jury instruction including both statutory and non-statutory mitigating factors fails constitutional scrutiny has been repeatedly rejected by this Court. State v. Rousan, 961 S.W.2d 831, 849 (Mo. banc 1998), cert. denied, 524 U.S. 961, 118 S.Ct. 2387, 141 L.Ed.2d 753 (1998); State v. Copeland, 928 S.W.2d 828, 853 (Mo. banc 1996). There is no plain error in this regard.

IV.

Defendant asserts trial court error in failing to sever the first degree murder charges from the assault and armed criminal action charges sua sponte. Defense counsel neither moved the court to sever the charges nor addressed the issue in the motion for a new trial. This claim has not been preserved. Again, defendant requests plain error review. In his view, section 565.004.1 prevents the joinder of any other offense alongside a first degree murder charge. However, the relevant sentence reads, “ Except as provided in subsections 2, 3, and 4 of this section, no murder in the first degree offense may be tried together with any offense other than murder in the first degree.” Id. (emphasis added).

Subsection 3 provides: When a defendant has been charged and proven before trial to be a prior offender pursuant to chapter 558 RSMo, so that the judge shall assess punishment and not a jury for an offense other than murder in the first degree, that offense may be tried and submitted to the trier together with any murder in the first degree charge with which it is lawfully joined. Id. Defendant qualifies as a prior offender under section 558.016.2 for having previously pleaded guilty to the offense of felony receipt of stolen property.

Additionally, defendant claims that the murder charges are not properly joined with the others under section 545.140.2. He asserts that no evidence of a common plan or scheme exists. Rule 23.05 governs joinder of offenses. Like section 545.140, Rule 23.05 permits the joinder of offenses that are “part of the same transaction ... or that constitute parts of a common scheme or plan.” Id. On this point, defendant cites State v. Simmons, 815 S.W.2d 426 (Mo. banc 1991), as a case where this court reversed two convictions of capital murder as being improperly joined because they were not part of a common scheme or plan. Simmons involved two murders over a month apart. To connect the two crimes for joinder, the state argued that the defendant stole jewelry from both victims and pawned them at the same pawn shop on different occasions. Moreover, the state asserted that the case was one of circumstantial evidence, and this similarity went to demonstrate the identity of the criminal. Id. at 429. While it remains unclear which of these two arguments convinced the trial court in Simmons that joinder was proper, neither basis was adequate to support joinder under section 565.004.1. First, the presence of facts common to both murders did not indicate that the defendant set out to kill both victims prior to killing the first. The second argument offers a basis for the admission of evidence, not joinder. Id. Simmons is not on point.

Here, in a matter of minutes, defendant went to his car, retrieved a pistol, shot three women, ran out of bullets, tried to fire on another person, and fought with him over a gun all in the same apartment. This satisfied the “same transaction or common scheme or plan” requirement necessary for joinder of criminal offenses. In this regard, there is no error, plain or otherwise.

V.

Next, defendant challenges the trial court's decision to sustain the state's objection to the use of a police report to cross-examine officer Crowley. The report prepared by Crowley apparently included a statement by James Johnson to Sgt. Minaeff indicating that Johnson chased defendant following the murders.FN2 Johnson testified at trial that he did no such thing. Since Johnson was a key witness for the state, defendant argues, the statement made to one officer, included in a police report prepared by another, should have been permissible to use while cross-examining the preparing officer to impeach Johnson. According to defendant, the trial court's refusal to allow this questioning violated his due process and confrontation rights as well as his right to be free from cruel and unusual punishment.

FN2. Defendant made no offer of proof of the content of Crowley's report. Defendant also did not call Sgt. Minaeff as a witness. Thus, the exact contents of what was in the report or what Minaeff claims he was told by Johnson is uncertain.

At trial, defense counsel insisted the reason for admitting this evidence was to explain subsequent conduct by police investigating the crime. The state objected. The court sustained the objection, concluding that Crowley's statement about what Sgt. Minaeff said Johnson told Minaeff was hearsay. Now, on appeal, defendant contends the evidence was intended to impeach Johnson. His brief does not address subsequent police conduct. When the trial court rules properly on admissibility of evidence at the time, a claim of error on another ground advanced for the first time on appeal will not be considered. State v. Spica, 389 S.W.2d 35, 54 (Mo.1965). The defendant is bound by the arguments made and the issues raised at trial and may not raise new and totally different arguments on appeal. State v. Ward, 782 S.W.2d 725, 731 (Mo.App.1989). Therefore, counsel failed to preserve this point. Defendant still fails to show how statements made by Johnson to an officer other than Crowley would not be hearsay when reported by Crowley.

Defendant cites State v. Claypool, 763 S.W.2d 313, 316 (Mo.App.1988), for the proposition that police reports may be admitted as evidence to impeach a witness with prior inconsistent statements. However, the police report at issue in Claypool was the report of an officer of what he was told by the witness whose testimony was being impeached. Unless it is clear that officer Crowley was present when Johnson made the allegedly contradictory statement, Claypool is inapposite. Trial courts retain broad discretion over the admissibility of evidence, and appellate courts will not interfere with those decisions unless there is a clear showing of abuse of discretion. State v. Hutchison, 957 S.W.2d 757, 763 (Mo. banc 1997). This point is denied.

VI.

During the penalty phase, defendant claims the trial court plainly erred in permitting Carmelita to testify as to two incidents for which he was never charged. This point is absent from the motion for new trial and is therefore unpreserved for appeal. The trial court overruled defense counsel's objection to Carmelita testifying about one incident in which defendant struck her, resulting in a black eye, and another event in which he threatened her with a gun. This is plain error, he believes, because the state did not have to prove these unadjudicated “bad acts” beyond a reasonable doubt. In support, he cites cases from Indiana and Alabama. See State v. McCormick, 272 Ind. 272, 397 N.E.2d 276 (1979); and Cook v. State, 369 So.2d 1251 (Ala.1978). However, our precedent is quite clear. As a general rule, the trial court “has discretion during the punishment phase of trial to admit whatever evidence it deems helpful to the jury in assessing punishment.” State v. Kinder, 942 S.W.2d 313, 331 (Mo. banc 1996) (quoting State v. Six, 805 S.W.2d 159, 166 (Mo. banc 1991)). Furthermore, evidence of a defendant's prior unadjudicated criminal conduct may be heard by the jury in the punishment phase of a trial. Id. Because Kinder was and remains a correct statement of Missouri law, defendant's request that it be reconsidered is declined.

VII.

Defendant complains that the trial court erred in permitting the state to argue during the penalty phase that he would have killed Shawnee's children had he not run out of bullets. Counsel, however, failed to object at trial and did not raise the issue in the motion for a new trial. This point is not preserved for appeal. Review is limited to plain error. Rule 30.20. By suggesting defendant would have shot Shawnee's children, he submits the state played upon the emotions of the jury, obtaining a sentence not based on reason as required by law. Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977). Plain error will seldom be found in unobjected to closing argument. State v. Kempker, 824 S.W.2d 909, 911 (Mo. banc 1992). A holding that would require the judge to interrupt counsel presents a myriad of problems. Id. To be entitled to relief under the plain error rule, an appellant must go beyond a mere showing of demonstrable prejudice to show manifest prejudice affecting his substantial rights. State v. Parker, 856 S.W.2d 331, 332 (Mo. banc 1993). In other words, the appellant must show that the error affected his rights so substantially that a miscarriage of justice or manifest injustice will occur if the error is left uncorrected. Id. at 332–33.

Even if the comment was improper, a conviction will be reversed for improper argument only if it is established that the comment in question had a decisive effect on the jury's determination. Id. at 333. When reviewing an argument for plain error, the burden is on the defendant to prove the decisive significance. Id. The record does not suggest evidence that the state's single comment during the penalty phase closing argument had such decisive effect. The jury convicted defendant of the first degree murder of two women. The evidence offered at trial indicated that he entered the apartment with a loaded semi-automatic handgun. He proceeded to shoot three people. Two died. One was permanently blinded. He tried to fire on at least one other, but had spent all six rounds the weapon was capable of carrying. The statutory aggravator was satisfied as the jury found that he committed each murder while engaged in the commission of the other. No doubt existed that everyone in the apartment was put at risk by defendant's shooting spree, including the children. It is fair to infer that the only reason others in the house were not shot was that defendant ran out of bullets. How the isolated comment regarding his intentions toward the children effected the jury's verdict is highly speculative, at best. There is no plain error here.

VIII.

Lastly, defendant attacks the sentence of death on a number of fronts. First, he argues the sentence is excessive and disproportionate and, therefore, violative of his rights to due process and to be free from cruel and unusual punishment. He claims the trial court erred in imposing the sentence and, pursuant to this Court's statutory review under section 565.035, he requests that the sentence be vacated. Second, he suggests his sentences are the product of passion and prejudice arising from the state's repeated references to the murders as “cold-blooded.” Finally, he disputes the adequacy of this Court's proportionality review. He contends this Court fails to consider all similar cases, does not maintain a complete database as required by statute, and that there is a lack of notice of the proper procedure followed by a meaningful opportunity to be heard. He claims these last three errors resulted in the arbitrary and capricious imposition of the death penalty and calls for the setting aside of the death sentences.

Defendant argues that the circumstances surrounding the murders evince a conflict of intense emotion and jealousy, making a more lenient sentence appropriate. According to him, the death sentence is excessive and disproportionate in light of the domestic context from which the murders arose. To support this statement, he cites Florida cases and three Missouri Court of Appeals decisions involving murder in domestic violence situations where the death penalty was not imposed. The issue, however, in proportionality review is not whether any similar case can be found in which the jury imposed a life sentence. Rather, the issue is whether the death sentence is excessive or disproportionate in light of “similar cases” as a whole, considering the crime, the strength of the evidence, and the defendant. Section 565.035.3(3). A sentence of death has often been imposed where the defendant, as here, murdered more than one person. State v. Johnson, 968 S.W.2d 123, 135 (Mo. banc 1998), cert. denied, 525 U.S. 935, 119 S.Ct. 348, 142 L.Ed.2d 287 (1998); State v. Clemons, 946 S.W.2d 206, 233 (Mo. banc 1997), cert. denied, 522 U.S. 968, 118 S.Ct. 416, 139 L.Ed.2d 318 (1997). Moreover, a defendant's willingness to kill, and kill again, is compelling and clear of conduct meriting even greater societal concern than individual homicide. Such conduct particularly warrants imposition of the ultimate punishment. State v. Rodden, 728 S.W.2d 212, 222 (Mo. banc 1987). In his view, the murders occurred in the context of defendant finding out about Carmelita dating Tony Reynolds. The record reflects a different crime. While he did shoot Carmelita multiple times, defendant also murdered two other women having nothing to do with any relationship he continued to have with Carmelita beyond being in the same apartment. Shawnee pled for her life before he killed her as her children sat in the next room. He ran out of bullets and still tried to shoot James Johnson, a fourth person merely present in the apartment, who heard the unloaded gun click as defendant dry-fired it. Considering the statutory factors, capital punishment is not excessive or disproportionate in the case at bar.

Defendant also claims the sentence imposed resulted from passion and prejudice manufactured by the state's repeated references to the murders as “cold-blooded.” This is merely a transparent effort to resurrect an unpreserved objection that the argument was improper. Such statements are not necessarily improper if they result from a reasonable inference from the evidence. See State v. Debler, 856 S.W.2d 641, 651 (Mo. banc 1993); State v. Basile, 942 S.W.2d 342, 353 (Mo. banc 1997), cert. denied, 522 U.S. 883, 118 S.Ct. 213, 139 L.Ed.2d 148 (1997). Referring to the murder of two women not involved in any dispute defendant had with his ex-girlfriend, while one pled for her life as her children were in the next room, as being “cold-blooded” is a reasonable inference from the evidence. After a careful review of the record, nothing indicates that the trial court's imposition of the death sentence resulted from the influence of passion, prejudice, or any other arbitrary factor. See section 565.035.3. The jury found one statutory aggravator in the murder of Arthea Sanders: that the murder was committed while defendant was engaged in the commission of another unlawful homicide. Likewise, it found one statutory aggravator in the murder of Shawnee Murphy: that the murder was committed while defendant was engaged in the commission of another unlawful homicide. The jury's finding of these aggravaters is adequately supported by the evidence and was surely the reason for the death sentence, not the state's characterization of the murders.

Defendant also challenges the adequacy of the proportionality review database, and claims he had a lack of proper notice. These points are without merit. The purpose of the proportionality review is merely to prevent freakish and wanton applications of the death penalty. Johnson, 968 S.W.2d at 134. The review performed sufficiently meets that standard. Id. Additionally, claims contesting the adequacy of the database have also been dismissed. Id. at 135. Finally, due process claims similar to defendant's have been rejected by this Court. See id.

CONCLUSION

Having determined that none of Mr. Winfield's claims on appeal have merit, the judgment is affirmed. All concur.

Winfield v. State, 93 S.W.3d 732 (Mo. 2002). (PCR)

After petitioner's convictions for first-degree murder, first-degree assault, and armed criminal action and death sentences were confirmed, 5 S.W.3d 505, petitioner filed motion for post-conviction relief. The Circuit Court, St. Louis County, Maura B. McShane, J., overruled the motion, and petitioner appealed. The Supreme Court, Michael A. Wolff, J., held that: (1) defense counsel was not ineffective for not allowing defendant to testify during penalty phase of trial; (2) defendant waived claim that defense counsel rendered ineffective assistance by allowing jury to use defendant's failure to testify as an aggravating circumstance; (3) even if defendant did not waive claim that trial counsel's failure to request no-adverse-inference instruction to defendant's failure to testify at penalty phase, failure to request instruction did not prejudice defendant; (4) trial counsel's conduct of confrontational direct examination of defendant was reasonable trial strategy; (5) alleged failure of defendant's post-conviction relief counsel to raise any claim regarding defendant's right to have “no-adverse-inference” jury instruction submitted during penalty phase and any claim regarding total breakdown in communication between members of his defense team was not reviewable, nor cognizable on appeal; and (6) failure of trial counsel to call defendant's children as witnesses during penalty phase did not constitute ineffective assistance. Affirmed.

MICHAEL A. WOLFF, Judge.

John Winfield appeals the overruling of a Rule 29.15 motion to vacate his death sentences. This Court has exclusive jurisdiction.FN1 This Court on direct appeal upheld Winfield's convictions and sentences. See State v. Winfield, 5 S.W.3d 505 (Mo. banc 1999). Judgment of the motion court is affirmed. FN1. Mo. Const. art. V, sec. 10; order of June 16, 1988. FN2. For a full-length account of the facts, see Winfield, 5 S.W.3d 505 at 508–510.

Facts

Winfield was convicted in 1998 of two counts of first-degree murder, two counts of first-degree assault, and four counts of armed criminal action. After the jury's recommendations, the circuit court sentenced Winfield to death for each count of murder in the first degree, one life sentence and fifteen years, and four 75 year sentences for the remaining six counts of Winfield's conviction. Winfield timely filed a pro se motion for post-conviction relief, pursuant to Rule 29.15. The motion court held an evidentiary hearing, including live and deposition testimony. On December 17, 2001, the motion court issued its findings of fact and conclusions of law overruling Winfield's motion. This appeal followed.

Winfield's Contentions

Winfield raises eight points on appeal before this Court. Winfield contends that he received ineffective assistance of counsel because: (1) Defense counsel prevented him from testifying during the penalty phase of the trial; (2) Defense counsel allowed the jury to draw an adverse inference from Winfield's failure to testify during the penalty phase of the trial; (3) Defense counsel was incompetent in the manner in which he questioned the defendant on direct examination in the guilt phase of the trial; (4) He was not adequately represented in the post-conviction relief evidentiary hearing; (5) Defense counsel failed to investigate and call Winfield's children as mitigation witnesses during the penalty phase of the trial; (6) Defense counsel failed to investigate and present the details of Winfield's life in the penalty phase; (7) Defense counsel failed to investigate Winfield's emotional state with an expert; and (8) Defense counsel failed to offer an instruction regarding the weight to give statements.

Standard of Review

This Court's review of Winfield's claims is for the limited purpose of determining whether or not the motion court clearly erred in making its findings of fact and conclusions of law. Skillicorn v. State, 22 S.W.3d 678, 681 (Mo. banc 2000). To prove that counsel was ineffective, a movant must show that counsel's performance “did not conform to the degree of skill, care, and diligence of a reasonably competent attorney” and that movant was thereby prejudiced. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To demonstrate prejudice, a movant must show that, but for counsel's poor performance, there is a reasonable probability that the outcome of the court proceeding would have been different. Id. Moreover, this Court presumes that counsel acted professionally in making decisions and that any challenged action was a part of counsel's sound trial strategy. Id.

Alleged Conduct in Preventing Winfield from Testifying in the Penalty Phase of the Trial

Winfield claims that defense counsel was ineffective for not allowing him to testify during the penalty phase of his trial. Winfield further argues that “... [b]ut for trial counsel's ineffectiveness ..., the outcome of [the] proceedings would have been different and [he] would not have received the death penalty.” Winfield asserts that the holding articulated by United States v. Teague, 953 F.2d 1525 (11th Cir.1992), bolsters his argument. However, Teague does not assist Winfield's argument.

In Teague, defendant argued that his attorney deprived him of his constitutional right to testify in his own behalf, when his attorney rested the defense case without calling him to the stand, despite defendant's repeated indications that he wanted to testify. The court found that the evidence failed to show that the defendant's will was overborne by his counsel, to substantiate his claim that counsel's performance was constitutionally deficient. The court found the defendant was advised of his right to testify, was advised that he should not exercise that right, and did not protest when the defense rested its case.

Although Winfield's claim that Teague bolsters his argument is erroneous, the holding and rationale of the Teague court are applicable. The evidence here does not show that Winfield's will was overborne by his defense counsel. The motion court found multiple reasons that Winfield's claim is not meritorious. First, the motion court found that Winfield was advised of his right to testify during the penalty phase of the trial, was advised that he should not exercise that right, and did not protest when the defense rested its case.

Second, the motion court found that Winfield decided that he did not want to testify. The motion court found that Winfield never told his defense counsel during the penalty phase that he wanted to testify, even though Winfield and defense counsel discussed the possibility of testifying in the penalty phase. Although there was testimony to contradict defense counsel's testimony, the motion court found defense counsel's testimony to be credible based upon the demeanor of defense counsel while testifying, the testimony taken as a whole, and the congruency between the record and the defense counsel's testimony. The motion court concluded that the only reason the trial court was not informed of Winfield's desire to testify was because Winfield did not want to testify during the penalty phase of the trial.

Finally, the motion court found that Winfield did not prove he was prejudiced by his failure to testify. The motion court found there was no reasonable probability that if he would have testified the result of the proceeding would have been different. The motion court concluded that if Winfield testified during the penalty phase he could have been impeached by his prior inconsistent statements as well as that testimony given during the guilt phase of the trial—which was conceded to be disastrous. FN3. During Winfield's deposition, Winfield claimed that he did not commit the murders and stated that he would have testified to that during the penalty phase of the trial. The motion court did not clearly err in making its findings of fact and conclusions of law on this issue.

Defense Counsel Allegedly Allowed for the Jury to Draw an Adverse Inference from Winfield's Failure to Testify During the Penalty Phase Winfield claims, for the first time, that defense counsel rendered ineffective assistance by allowing the jury to use his failure to testify as an aggravating circumstance. Winfield argues that “any reasonably competent attorney whose practice involves capital murder would know that the no-adverse-inference instruction applied to penalty phase silence as well as guilt.”

Rule 29.15(d) requires that all claims known to the movant for vacating, setting aside, or correcting the judgment or sentence shall be included in a post-conviction relief motion. Moreover, 29.15(d) mandates that the movant shall declare in the motion that the movant has listed all claims for relief known to the movant and shall acknowledge the movant's understanding that the movant waives any claim for relief known to the movant that is not listed in the motion. “The effect of Rule 29.15(d) is to bar all claims not raised in a timely filed pleading.” State v. Johnson, 968 S.W.2d 686, 695 (Mo. banc 1998)(quoting State v. Twenter, 818 S.W.2d 628, 641 (Mo. banc 1991)). Winfield failed to preserve this point by not raising it in his post-conviction relief motion. The point is procedurally defaulted.

Nonetheless, even if Winfield's claim were not procedurally barred, Winfield's claim is without merit. Winfield fails to show that he was prejudiced by the failure to request the “no-adverse-inference” instruction. Winfield contends that had jurors known that his silence during the penalty phase could not be considered, a reasonable probability exists that they would have opted for life imprisonment without probation or parole. This argument is unpersuasive. Winfield fails to set forth any evidence that the instruction would have resulted in a different outcome, except that the jury spent over 5 one-half hours deliberating without the presence of the instruction. To conclude that with the presence of the “no-adverse-inference” instruction that the jury would have opted for life imprisonment instead of the death penalty is speculative. With no more than arguments and conclusions grounded in speculation, Winfield cannot establish prejudice.

Counsel's Direct Examination of Winfield in the Guilt Phase of the Trial

Winfield asserts that defense counsel in direct examination interrogated him by attacking his testimony whenever it did not comport with what his trial counsel believed actually happened. Winfield contends that his trial counsel performed as the state's advocate rather than his own, resulting in Winfield being cross-examined not only by the state—but by defense counsel as well.

The record reflects that defense counsel was confronted with indisputable facts that Winfield shot three persons, killing two of them. The apparent theme of the defense was that Winfield “snapped” and the killings were acts that did not involve deliberation. The highly confrontational, and indeed cross-examinational, nature of the direct-examination was a matter of trial strategy implemented for the benefit of Winfield, not advocacy for the state. The objective of the trial strategy apparently was to create some sort of “psycho-drama” in which Winfield would spontaneously snap during this pressured examination so the jury could see that Winfield is a volatile, emotional, impulsive person—but not a deliberative actor. This strategy to portray Winfield as an explosive person—in order to mitigate the murders from first-degree to second-degree—was deemed a disaster by defense counsel's own admission. In fact, one could argue that the strategy was too risky and failure was inevitable. But, tactical and strategic decisions, which might have been handled differently by many or even most attorneys, will not establish incompetence. See Laws v. Armontrout, 834 F.2d 1401, 1408 (8th Cir.1987); see also Joseph G. Cook, Constitutional Rights of the Accused section 8:18 (3rd ed.1996).

Winfield concedes that defense counsel voiced a theory that Winfield committed the shootings—but did not commit the shootings deliberately. The crux of Winfield's defense was that “all of a sudden he just lost it.” However, Winfield asserts that defense counsel did nothing to move this theory forward. On the contrary, defense counsel's implementation of highly confrontational direct-examination techniques in order to elicit some emotion from Winfield can be argued as a valid attempt to assert this “all of a sudden he just lost it” theory. What may have appeared to be advocacy for the state—and against Winfield—might have been the only plausible method of trying to exonerate Winfield from a death sentence, in light of the egregious facts that surround this case.

The motion court found that Winfield was fully advised of his right to testify or not to testify and the advantages and disadvantages of both. Trial counsel cannot be held ineffective because trial counsel's direct examination of Winfield elicited damaging evidence. State v. Smith, 871 S.W.2d 67 (Mo.App.1994). Winfield cannot overcome the presumption that defense counsel's direct examination techniques were part of a sound trial strategy. The motion court did not clearly err in its findings of fact and conclusions of law on this issue.

Post–Conviction Counsel's Conduct During the Post–Conviction Relief Evidentiary Hearing

Winfield claims, for the first time on appeal, that his right to effective counsel was violated by the ineffective assistance rendered by counsel during the post-conviction relief evidentiary hearing. Winfield alleges that post-conviction relief counsel failed to raise any claim regarding his right to have the “no-adverse-inference” jury instruction submitted during penalty phase and any claim regarding the total breakdown in communication between members of his defense team. Winfield also alleges that although post-conviction relief counsel alleged several questions that defense counsel should have asked regarding unadjudicated assaults against Carmelita Donald, post-conviction counsel failed to hint at what type of answers defense counsel might have elicited. Winfield's claim is without merit.

There is no recognized constitutional right to counsel in a post-conviction proceeding. State v. Hunter, 840 S.W.2d 850, 871 (Mo. banc 1992). As a result, a post-conviction movant has no right to effective assistance of counsel. Id. Winfield's claim is not reviewable, id., nor cognizable on appeal. State v. Parker, 886 S.W.2d 908, 933 (Mo. banc 1994).

Winfield's claim does not fall within the class of recognized acts that would subject it to an abandonment analysis. Abandonment occurs when (1) post-conviction counsel takes no action on a movant's behalf with respect to filing an amended motion and as such the record shows that the movant is deprived of a meaningful review of his claims; or (2) when post-conviction counsel is aware of the need to file an amended post-conviction relief motion and fails to do so in a timely manner. Moore v. State, 934 S.W.2d 289, 291 (Mo. banc 1996). Winfield advocates for the concept of abandonment to be extended in order to encompass “materially incomplete action.”

Winfield argues that the present state of Rule 29.15, which makes the counsel the master of the post-conviction case, punishes him by determining that he waived any claim that he knew about, but that post-conviction counsel omitted. This Court has stated that it will not expand the scope of abandonment beyond the aforementioned two-part criteria. See State v. Ervin, 835 S.W.2d 905, 928–29 (Mo. banc 1992). Therefore, the concept of abandonment is not applicable to Winfield's argument. Winfield also argues that if this Court concludes that “materially incomplete action” does not constitute abandonment, this Court must find that Rule 29.15 serves as the first appeal of right as to one's right to effective counsel. To conclude that Rule 29.15 serves as the first appeal of right contradicts established federal case law. See Nolan v. Armontrout, 973 F.2d 615, 617 (8th Cir.1992).

Defense Counsel's Alleged Failure to Investigate and Call Winfield's Children, Mykale Donald and Symone Winfield, as Mitigation Witnesses During the Penalty Phase of the Trial

Winfield claims that defense counsel was ineffective for failing to investigate and call Mykale Donald and Symone Winfield—Winfield's two children—as witnesses during the penalty phase of the trial. Winfield alleges that the children would have provided evidence that Winfield “did many fun activities with them, taught them how to do things and loved them deeply.”

“A decision to not call a witness is presumed trial strategy unless clearly shown to be otherwise.” Rousan v. State, 48 S.W.3d 576, 582 (Mo. banc 2001). When defense counsel believes a witness' testimony would not unequivocally support his client's position, it is a matter of trial strategy not to call him, and the failure to call such witness does not constitute ineffective assistance of counsel. Id. at 587. The motion court found that defense counsel's decision not to call Winfield's children as mitigation witnesses was based upon trial strategy. FN4. Defense counsel testified during the post-conviction relief hearing that, as a matter of trial strategy, he thought using Symone Winfield and Mykale Donald would have hurt the defense and decided not to call them as witnesses.

The motion court also found that testimony given by Mykale Donald and Symone Winfield in lieu of testifying at the post-conviction relief hearing would essentially have been cumulative of the evidence given during trial. During the penalty phase, defense counsel called John Edmond as a witness. Edmond testified to Winfield's relationship with Mykale Donald and Symone Winfield. The motion court did not clearly err in its findings of fact and conclusions of law on this issue.

Defense Counsel's Alleged Failure to Investigate and Present the Details of Winfield's Life History Winfield alleges that defense counsel rendered ineffective assistance of counsel in failing to investigate and present details of his life history and that a reasonably incompetent attorney would have not called upon Winfield's mother and grandmother as the only sources of Winfield's life history. Winfield contends that Katherine Patton–Bennett, Maurice Patton, Darrell Jefferson, Frank Elliott, John Sutherland, Jr., and David Winfield were willing and able to convey his life history to the jury. FN5. Winfield claims that these potential witnesses would have testified that Winfield collected comic books as a youth; played football with a youth organization, and often had to ride his bike 20 miles to practice; watched over his cousin Maurice and helped influence him to become an artist; and that Winfield had the weight of the world on his shoulders as the man of the house.

“Failing to present cumulative evidence is not ineffective assistance of counsel.” Bucklew v. State, 38 S.W.3d 395, 401 (Mo. banc 2001) (quoting State v. Johnston, 957 S.W.2d 734, 755 (Mo. banc 1997)). Much of the evidence these witnesses would have presented would have been needlessly cumulative to evidence the defense presented during the penalty phase of trial. As discussed above, the motion court found that the testimony elicited from John Edmond—Winfield's father—conveyed Winfield's life history to the jury. Edmond's testimony depicted the relationships that Winfield had with his mother, his stepmother, his grandmother, his children, and Carmelita Donald—one of the shooting victims. Moreover, the motion court found that defense counsel conveyed Winfield's life history to the jury by calling Marsha Edmond, Rosalie Bell, David Winfield, FN6 and cross-examining Carmelita Donald.FN7 Defense counsel testified that he investigated every witness given to him by Winfield regarding the penalty phase of the trial and selected which witnesses to call and exclude as a matter of trial strategy.

FN6. Winfield claims that David Winfield was not called as a witness by defense counsel, but the record reflects that David Winfield did testify at trial. FN7. Like John Edmond, these witnesses' testimony depicted Winfield's life as a child and an adult in an effort to convey Winfield's life to the jury. The motion court did not clearly err in its findings of fact and conclusions of law on this issue.

Defense Counsel's Alleged Failure to Investigate Winfield's Emotional State During the Shootings with an Expert Winfield argues that he received ineffective assistance of counsel based upon counsel's alleged failure to properly investigate a mitigation defense of “extreme emotional disturbance.” Winfield further argues that defense counsel should have presented expert testimony to establish the defense. The motion court determined that both the court file and Winfield's own testimony refute Winfield's argument.

The court file contained the reports from a court-ordered psychiatric examination and a defense-requested psychiatric examination performed by Drs. Rabun and Cuneo, respectively. Both doctors opined that Winfield did not suffer from any mental illness. Thus, defense counsel determined—as a matter of trial strategy—not to use psychiatric testimony during the penalty phase. Defense counsel testified that in determining whether to use Dr. Rabun as an expert during the penalty phase, he relied upon Dr. Rabun's finding that “...a mental disturbance did not substantially affect Mr. Winfield's behavior during the instant offense.” As a result, defense counsel testified that he decided not to use Dr. Rabun or another witness because he did not believe he had sufficient evidence to support the instruction. The court file establishes that defense counsel did investigate the usage of expert testimony regarding Winfield's emotional state during the shootings.

Winfield further argues that defense counsel should have investigated and presented expert evidence that Winfield suffered from an extreme emotional disturbance at the time of the murders. However, the motion court found that Winfield's own testimony refutes this argument. During the guilt phase of the trial, Winfield testified that he “wasn't happy” but denied that he was “upset, confused or angry” during the moments leading up to and including the shootings. Winfield also testified during his deposition that he did not want his attorneys to put on evidence that he was suffering from an extreme mental or emotional state when he committed the crimes. Moreover, defense counsel cannot be found ineffective for failing to shop for a more favorable expert witness. State v. Copeland, 928 S.W.2d 828, 845 (Mo. banc 1996). The motion court did not clearly err in its findings of fact and conclusions of law on this point.

Defense Counsel's Failure to Offer an Instruction Regarding the Weight to Give Statements

Winfield alleges defense counsel was ineffective for failing to submit a jury instruction based on MAI–CR3d 310.06.FN8 The motion court found that the allegation is without merit. The trial court concluded that Winfield's admissions to the police were admissible. This Court on direct appeal found that the record clearly reflected the constitutional validity of Winfield's waiver with respect to his Miranda rights. See Winfield, 5 S.W.3d at 512. The motion court found that the MAI–CR 3d instruction would serve only to direct attention to an obviously voluntary confession. Moreover, Winfield cannot show any prejudice from trial counsel's failure to request MAI–CR 3d 310.06, because he has not set forth any evidence that his statements to police were coerced or uninformed.

The pertinent part of MAI–CR 310.06 provides: “Evidence has been introduced that the defendant made certain statements relating to the offense for which he is on trial. If you find that a statement was made by the defendant, and that at that time he understood what he was saying and doing, and that the statement was freely and voluntarily made under all of the circumstances surrounding and attending the making of the statement, then you may give it such weight as you believe it deserves in arriving at your verdict. However, if you do not find and believe that the defendant made the statement, or if you do not find and believe that he understood what he was saying and doing, or if you do not find and believe that the statement was freely and voluntarily made under all of the circumstances surrounding and attending the making of the statement, then you must disregard it and give it no weight in your deliberations.” The motion court did not clearly err in making its findings of fact and conclusions of law on this issue.

CONCLUSION

Based upon the foregoing, this Court concludes that the motion court did not clearly err in making its findings of fact and conclusions of law after hearing Winfield's motion for post-conviction relief. Winfield is unable to prove that his defense counsel was ineffective, nor can Winfield prove prejudice based upon the asserted inadequate representation. Winfield has also failed to show that his post-conviction counsel's conduct entitles him to relief. The judgment of the motion court is affirmed. All concur.

Winfield v. Roper, 460 F.3d 1026 (8th Cir. Mo. 2006). (Federal Habeas)

Background: Following affirmance on direct appeal of petitioner's state court convictions for first-degree murder, assault, and armed criminal action, and his death sentence, 5 S.W.3d 505, petitioner filed for federal habeas relief. The United States District Court for the Eastern District of Missouri, Donald J. Stohr, J., denied petition. Petitioner appealed.

Holdings: The Court of Appeals, Murphy, Circuit Judge, held that: (1) defense counsel's decision not to call petitioner's children to testify during the penalty phase did not deprive him of effective assistance of counsel; (2) defense counsel's decision not to call petitioner's friend to testify during the penalty phase was reasonable trial strategy; (3) petitioner was not prejudiced by defense counsel's failure to call petitioner's mother or grandmother to testify; (4) counsel was not ineffective for not allowing capital murder defendant to testify; (5) petitioner's conflict of interest claim was not procedurally barred by the Missouri Supreme Court clerk's decision not to file his pro se brief; (6) habeas review of conflict of interest claim was barred; and (7) counsel was not ineffective in failing to investigate a mitigation defense of extreme emotional disturbance. Affirmed.

MURPHY, Circuit Judge.

John Winfield was convicted in Missouri state court of multiple counts of murder, assault, and armed criminal action and was sentenced to death. After his conviction and sentence were affirmed by the Missouri Supreme Court on direct appeal, he moved for post conviction relief in the state circuit court. That motion was denied after an evidentiary hearing, and the Missouri Supreme Court affirmed. Winfield then petitioned the federal district court FN1 for a writ of habeas corpus. The petition was denied, and Winfield was granted a certificate of appealability on three issues, all of which have been briefed and argued. We now affirm. FN1. The Honorable Donald J. Stohr, United States District Judge for the Eastern District of Missouri.

I.

John Winfield met Carmelita Donald in 1987, and she and her son Mykale Donald eventually moved in with him. They subsequently had a daughter, Symone Winfield. They had a difficult relationship, which Carmelita ended in the spring of 1996. She moved into a second floor apartment on Page Street in St. Louis, Missouri with her sister, Melody Donald, and their friend Arthea Sanders. Winfield lived with his family about one block away on Liberty Street.

On the night of September 9, 1996 Carmelita went out with her then boyfriend Tony Reynolds. Winfield was unaware of this relationship and called her apartment numerous times between 10:00 and 11:00 pm that evening trying to reach her. He spoke with Melody and asked where Carmelita was. Melody replied that she did not know, and Winfield told Melody to have Carmelita call him when she got home. Later that evening Winfield went to Carmelita's apartment looking for her. By that time Melody had learned from Arthea that Carmelita was out with Reynolds, so the two women decided to lie to Winfield and told him that she was with Arthea's mother. Melody then went downstairs to Shawnee Murphy's apartment in order to call Arthea's parents to let them know what had been said to Winfield. When Melody returned to her apartment, she discovered that Winfield had destroyed some of her furniture. As he was leaving the apartment, Winfield remarked that he would “kick [Carmelita's] ass.” When Carmelita returned home around midnight, Winfield was waiting for her. He forced her into an adjacent parking lot to talk and repeatedly asked Carmelita whether she was having a relationship with Reynolds, which she denied. Melody and Shawnee watched the altercation from Shawnee's apartment, but Arthea went outside and slashed the tires on Winfield's car. Then Arthea returned to Shawnee's apartment and told the others to call the police.

Winfield, seeing that his tires had been slashed, went to his car, retrieved his gun, and went into Shawnee's apartment. He shot Arthea in the head from close range, killing her. He then turned the gun on Carmelita, said “[f]uck you bitch” and shot her numerous times. Carmelita did not die, but she suffered multiple gunshot wounds and underwent emergency brain surgery. She was left completely blind and facially disfigured. Winfield then shot and killed Shawnee and turned the gun towards Shawnee's guest, James Johnson, and Melody. Melody escaped out of the back door of the apartment and ran next door to call the police. Johnson struggled with Winfield in an effort to gain control of the gun. Winfield tried to shoot him, but the gun either jammed or was empty so he hit Johnson on the head with the gun and fled the scene. The police arrested Winfield the following day. After being informed of his rights, Winfield told the police that he had thrown the gun in a creek near a newly constructed bridge. The gun was not found, but officers searched Winfield's home and discovered .380 caliber bullets in his bedroom, the same type of ammunition used in the shooting.

Winfield retained attorneys Scott Rosenblum and Brad Kessler to represent him. At that time the two attorneys worked together in Rosenblum's law firm. They agreed that Kessler was to handle the guilt phase of the trial and Rosenblum was to handle the penalty phase. The relationship between the lawyers deteriorated, and Kessler left the firm three months prior to trial. He took case files with him, but not any of the penalty phase materials necessary for Rosenblum's portion of the defense.

Two months prior to trial Winfield filed a malpractice action against his attorneys, alleging that they had failed to consult with him adequately regarding the defense, that they had failed to investigate in preparation for his defense, and that they had failed to prepare a meaningful defense. FN2 Winfield nevertheless continued to allow Kessler and Rosenblum to represent him. He never informed the court of his lawsuit or of any problems with counsel, and he never asked the court to appoint new counsel. FN2. Winfield failed to pay the proper filing fee, and his complaint was returned to him three months later. After his trial he refiled the lawsuit, but a motion to dismiss was granted on collateral estoppel grounds. Winfield's attempted appeal was dismissed as premature since there was no judgment.

Trial began on July 13, 1998, and from the outset the defense admitted Winfield's acts on the night of September 9, 1996. The theory of the defense was that Winfield's actions that evening were not deliberate, but rather that he had acted in the heat of the moment. Winfield testified in his own defense and admitted his acts, but claimed that he had not planned “on hurting nobody” and that he had just “snapped.” He also admitted initially lying to the police when he claimed that another person had used his gun. The jury found him guilty of two counts of first degree murder, two counts of first degree assault, and four counts of armed criminal action in violation of state law.

At the penalty phase of the trial the state presented a certified copy of Winfield's prior conviction for receiving stolen property. Carmelita also testified that Winfield had abused her in the past, including an incident where he put a gun to her head until she submitted to his sexual demands. The state also called Arthea's mother, Melody Sanders, and Shawnee's mother, Gerry Murphy. The penalty defense was presented by Rosenblum who sought to portray Winfield as an otherwise law abiding family man who just “snapped” the night of the murders. The defense called four witnesses: Winfield's father John Edmund, his stepmother Marsha Edmond, his brother David Winfield, and a family friend from church, Rosalie Bell. These witnesses testified that Winfield had a good relationship with his children, that he provided for the family, that he was a great family man, and that he had generally been law abiding. Winfield did not testify during the penalty phase. After deliberating for almost six hours, the jury recommended a sentence of death which was imposed by the court. The circuit court also sentenced Winfield to life imprisonment plus fifteen years on the two assault counts and to seventy five years on each count of armed criminal action.

Winfield filed a direct appeal of his conviction and sentence, which the Missouri Supreme Court affirmed. State v. Winfield, 5 S.W.3d 505 (Mo.1999). Winfield then changed defense counsel and filed a motion for post conviction relief in the Circuit Court of St. Louis County pursuant to Missouri Supreme Court Rule 29.15. He raised various claims in his motion including ineffective assistance of counsel based on many grounds, but conflict of interest was not among them. He later sought to amend his filings to include a conflict of interest claim alleging that the falling out between his lawyers had created divided loyalties and that his pending lawsuit against them created an actual conflict of interest. The circuit court ruled that the amendment was not timely and was thus procedurally barred.

The circuit court held an evidentiary hearing at which various witnesses testified, including Attorneys Kessler and Rosenblum, Kessler's assistant Linda Bates, Lisa Jones and Melissa Niehoff from the state prosecutor's office. The circuit court later issued its decision denying Winfield's motion for post conviction relief. He appealed the decision to the Missouri Supreme Court and attempted to include his tardy conflict of interest claim in a separate pro se brief. The court clerk refused to accept the pro se brief for filing because Winfield was represented by counsel and the claim had not been raised by his counsel in his submission. The Missouri Supreme Court affirmed Winfield's conviction and sentence. Winfield v. State, 93 S.W.3d 732 (Mo. banc 2002).

Winfield then filed this petition for a writ of habeas corpus in the United States District Court for the Eastern District of Missouri, alleging fourteen errors. Many of these claims asserted ineffective assistance of counsel, especially of penalty counsel, but they also included a separate claim of conflict of interest based on the malpractice suit Winfield had lodged against his attorneys as well as the problems between the two lawyers. The district court denied the petition. It concluded that Winfield's counsel had not been ineffective and that his conflict of interest claim was procedurally barred because Winfield had failed to include that claim in his initial motion for post conviction relief and had only asserted it in the rejected pro se brief. The district court concluded that the state circuit court had thus disposed of the claim on an independent and adequate state ground. Winfield sought to appeal, and we certified the following issues: whether Winfield's counsel was ineffective in the penalty phase for failure to investigate, to present particular witnesses, and to call him to testify, and whether Winfield's conflict of interest claim was procedurally barred from habeas review.

II.

Winfield argues that both of his attorneys were ineffective during the penalty phase of the trial. He claims that penalty counsel was ineffective for failing to investigate and call certain witnesses and that trial counsel was ineffective for failing to ensure that he was able to testify during the penalty phase.

We review the district court's findings of fact for clear error and its legal conclusions de novo. Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir.2005); Kenley v. Armontrout, 937 F.2d 1298 (8th Cir.1991) (reviewing claims of ineffective assistance de novo). Because the ineffectiveness claim has been adjudicated on the merits in state court, habeas relief is appropriate only if the state court adjudication of the claim “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

To be eligible for habeas relief based on ineffective assistance of counsel Winfield must meet the two part test announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He must first establish that counsel's representation was constitutionally deficient, which requires a showing that counsel's performance fell below an objective standard of reasonableness. Id. at 687-88, 104 S.Ct. 2052; Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). If he establishes that, Winfield must then show that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This requires proving that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been more favorable to Winfield. Id. at 690-91, 104 S.Ct. 2052. A reasonable probability is one “sufficient to undermine confidence in the outcome.” Wiggins, 539 U.S. at 534, 123 S.Ct. 2527. Merely showing a conceivable effect is not enough. Winfield must demonstrate that there is a reasonable probability that absent counsel's inadequate representation, the jury would not have sentenced him to death. Kenley, 937 F.2d at 1303-04.

Winfield first claims that penalty counsel did not conduct a proper investigation or present particularized facts in support of his penalty phase theory and failed to call certain witnesses who would have been supportive. Winfield claims that his children Symone Winfield and Mykale Donald, his friend John Sutherland, his mother Evylyn Winfield, and his grandmother Delores Dent would have told the jury how he was the “man of the house” and a “good father,” would have described the traumatic events Winfield suffered in the years leading up to the murders, and would have explained why he just “snapped” the night of the murders.

Counsel's decision not to call particular witnesses during the penalty phase of trial must be viewed as of the time it was made, Preston v. Delo, 100 F.3d 596, 604 (8th Cir.1996), and his decision is presumed to be one of trial strategy “unless clearly shown to be otherwise.” Rousan v. State, 48 S.W.3d 576, 582 (Mo. banc 2001). The circuit court concluded that penalty counsel's decision not to call these witnesses was part of his trial strategy and that their testimony would have been cumulative to that already offered, and this decision was affirmed by the Missouri Supreme Court. Winfield, 93 S.W.3d at 739. The record reveals that neither child wanted to testify, Symone would have testified about the hardship that Winfield's actions caused her mother Carmelita, and Mykale would have testified as to past violent incidents involving Winfield. Rather than call these children, Rosenblum called Winfield's father, John Edmond, and stepmother, Marsha Edmond, who both testified to Winfield's good relationship with his children. Even Carmelita admitted on cross examination that Winfield loved his children.

Not only was the decision not to call the children reasonable trial strategy, but their testimony would have been cumulative to that which was introduced. See Bucklew v. Luebbers, 436 F.3d 1010 (8th Cir.2006) (counsel not ineffective for not calling witnesses who would damage his case or whose testimony would be cumulative); Schlup v. Armontrout, 941 F.2d 631, 639 (8th Cir.1991) (counsel not ineffective for not calling a witness who would damage the defense's case); Hall v. Luebbers, 296 F.3d 685, 694 (8th Cir.2002) (counsel not ineffective for failing to adduce cumulative evidence). Similarly, the decision not to call Winfield's friend John Sutherland was reasonable since Sutherland had a criminal history and penalty counsel testified that he had tried to separate Winfield from “contacts like that.” We agree with the district court that the state court conclusions in respect to these particular witnesses were not contrary to, or an unreasonable application of, clearly established federal law, nor were they based on an unreasonable determination of the facts.

Winfield did not raise the arguments regarding the failure to call his mother Evylyn or his grandmother Delores in the state court proceedings. Because a federal habeas petitioner's claims must rely on the same factual and legal bases relied on in state court, Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir.1994), Winfield has defaulted these particular claims. His default will be excused only if Winfield shows cause and prejudice or miscarriage of justice, Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), neither of which he has done. Because apparently false statements related to Winfield's alibi defense had been made in depositions by his mother and grandmother and they would have been revealed to the jury, their testimony would likely have done more harm than good. Winfield has not shown he was prejudiced by the failure to call them.

Winfield further complains that penalty counsel never interviewed his aunt Katherine Patton-Bennett, his cousins Maurice Patton and Frank Elliot, or his friend Darrell Jefferson. He asserts that failure to interview and call these witnesses establishes ineffectiveness. Since the district court did not address this claim, he argues that its decision should be reversed.

Counsel is required to make a reasonable investigation in preparing his defense, including reasonably deciding when to cut off further investigation. Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Penalty counsel admitted that he did not interview Maurice Patton, Frank Elliot, Darrell Johnson, or Katherine Patton-Bennett, but Winfield has not shown that this prejudiced his defense. The Missouri Supreme Court found that had these witnesses been called, their testimony would have been cumulative and consequently they did not need to be called. Winfield, 93 S.W.3d at 739-40. See also Hall, 296 F.3d at 694; Bucklew v. State, 38 S.W.3d 395, 401 (Mo. banc 2001) (“failing to present cumulative evidence is not ineffective assistance of counsel”). Moreover, Darrell Jefferson had a criminal record, and experienced penalty counsel had already made a reasonable decision not to call a different individual with a criminal background because he did not want the jury to associate Winfield with criminals. Katherine Patton-Bennett would have provided testimony critical of victim Carmelita, which penalty counsel wanted to avoid since it could alienate the jury. We conclude that the failure to present cumulative testimony is not contrary to, or an unreasonable application of, federal law, Hall, 296 F.3d at 694, and that Winfield suffered no prejudice by counsel not calling these witnesses.

Winfield also argues that trial counsel rendered ineffective assistance by failing to ensure that he was able to testify during the penalty phase of the proceedings. Although attorney Rosenblum was responsible for the penalty phase, Winfield argues that attorney Kessler knew of his desire to testify and should have intervened to ensure that he was able to testify. The state circuit court held an evidentiary hearing to develop the issue of whether Winfield had indicated to counsel that he wanted to testify in the penalty phase. Rosenblum testified that he had talked with Winfield about his right to testify, that he had advised him not to exercise that right, and that Winfield never told him that he wanted to testify. Attorney Kessler and his assistant Linda Bates testified that at a time when Rosenblum was not present, Winfield told Kessler that he wished to testify. Kessler testified that he told Rosenblum of Winfield's desire to testify immediately before the defense rested at the penalty phase, but that he was “wave[d] off.” Rosenblum denied that Kessler ever told him that Winfield wanted to testify.

The circuit court considered all of the evidence and found that Rosenblum's testimony was credible but that Kessler, Bates, and Winfield were not. The circuit court found that Winfield had been informed of his right to testify at the penalty phase, had been advised by penalty counsel not to exercise that right, and made no protest when the defense rested its case. The court not only found that Winfield had waived his right to testify at the penalty phase, but also that he had not demonstrated prejudice from penalty counsel's failure to call him to the stand. The Missouri Supreme Court determined that the circuit court's findings were not clearly unreasonable, Winfield, 93 S.W.3d at 736-37, and affirmed.

After examining the record, the federal district court concluded that the circuit court's factual findings were fairly supported and that Winfield had not demonstrated prejudice from his failure to testify. We review the district court's legal conclusions de novo and its factual findings for clear error. Frey v. Schuetzle, 151 F.3d 893, 897 (8th Cir.1998).FN3 We presume that state court findings of fact are correct and will reverse only if they are not supported by the record. Whitehead v. Dormire, 340 F.3d 532, 536-37 (8th Cir.2003); Bounds v. Delo, 151 F.3d 1116, 1118 (8th Cir.1998). FN3. Winfield seems to argue that the asserted failure of counsel to allow him to testify was a due process violation, but such claims are more properly framed as ineffective assistance claims to be evaluated under Strickland. See Hines v. United States, 282 F.3d 1002, 1005 (8th Cir.2002); United States v. Teague, 953 F.2d 1525, 1534 (11th Cir.1992).

While a defendant has a right to testify during the penalty phase of his trial, waiver of that right is properly found where, as here, the defendant did not object when his counsel rested without calling him to testify. United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir.1987). Winfield's claim that he did not waive his right to testify was fully explored at the evidentiary hearing in the post conviction proceedings, and the state circuit court found that penalty counsel's testimony was credible, unlike that of Winfield, Kessler, and Bates. The circuit court was affirmed by the Missouri Supreme Court. Winfield, 93 S.W.3d at 736-37. Issues of credibility are left to the discretion of the state courts, Pittman v. Black, 764 F.2d 545, 546 (8th Cir.1985), and nothing in the record suggests that the state court erred in its determinations. See Frey, 151 F.3d at 898.

Moreover, even if we were to find that counsel was deficient by not calling Winfield to testify, the record indicates that he suffered no prejudice. Not only would Winfield's testimony have been cumulative, he would have denied committing the murders which would have been contradicted by his trial testimony and the jury verdict. Indeed, this was the reason penalty counsel advised him not to testify. After examining the record, we conclude that the state court did not err in its application of federal law to the issue of whether counsel was ineffective for failure to call Winfield at the penalty phase or make an unreasonable determination of the facts. The district court did not err in denying relief on this ground.

III.

Winfield complains that the district court erred in finding his conflict of interest claim procedurally barred. He contends that his conflict of interest claim could have been defaulted only if the last state court to consider it had expressly denied it on the basis of an independent and adequate state ground and that the Missouri Supreme Court had relied on a nonexistent rule against pro se briefs from represented parties. In addition, Winfield claims that his counsel's brief had preserved the conflict of interest claim because it is closely related to the ineffective assistance arguments made in the brief. The state responds that under Missouri Supreme Court Rule 29.15, Winfield's conflict of interest claim was not timely filed and that this procedural default serves as an independent and adequate state ground to bar consideration of the claim at this time. It contends that a Rule 29.15 default is a separate and distinct issue from whether the refusal to accept Winfield's pro se brief was based on an applicable procedural rule. The state argues that review of the conflict of interest claim would be proper only if Winfield had demonstrated cause and prejudice or actual innocence, which he has not done.

Although a habeas claim need not present an “exact duplicate” of one raised in the state proceedings, Odem v. Hopkins, 192 F.3d 772, 776 (8th Cir.1999), it must present the same factual and legal bases as in state court in order for the claim to be preserved. Anderson v. Groose, 106 F.3d 242, 245 (8th Cir.1997). Winfield's state law claims presented by his attorney made no mention of a possible conflict of interest or of the malpractice suit he had filed against Rosenblum and Kessler. We therefore conclude that counsel's submissions did not preserve that claim for habeas review. The more difficult question is whether the conflict of interest issue was preserved by Winfield's mention of it in his pro se brief, despite the refusal of the clerk of the Missouri Supreme Court to file it and his counsel's subsequent failure to raise the claim in his official filing. To our knowledge we have not previously been presented with a case where a claim defaulted in the lower state court was not addressed in the state supreme court because the clerk refused to accept a pro se filing from a party represented by counsel. FN4. In many of our habeas cases the state supreme court has refused to consider an issue on appeal because it was defaulted in the lower court; in such circumstances there is no question that the claim is barred from habeas review. See, e.g., Malone v. Vasquez, 138 F.3d 711, 717 (8th Cir.1998); Sloan v. Delo, 54 F.3d 1371, 1377 (8th Cir.1995).

We are prohibited from reviewing an issue that the state court has resolved on an adequate and independent state ground, including procedural default. Reagan v. Norris, 279 F.3d 651, 656 (8th Cir.2002). The procedural rule relied upon by the state court must be “firmly established, regularly followed and readily ascertainable when it was applied,” however. Malone v. Vasquez, 138 F.3d 711, 717 (8th Cir.1998). It is far from clear that the Missouri Supreme Court has a clearly established and regularly followed rule prohibiting defendants represented by counsel from filing a pro se brief. We noted in Clemmons v. Delo, 124 F.3d 944 (8th Cir.1997), that “[n]o rule of court or reported Missouri case of which we are aware specifies the circumstances under which Missouri appellate courts allow pro se briefs.... Sometimes Missouri courts allow pro se briefs, and sometimes they do not. That is their prerogative.” Id. at 948 n. 3.

The state has not demonstrated that since our decision in Clemmons the Missouri Supreme Court has provided a clear and ascertainable rule. Quite the contrary. The state's 28(j) letter submitted following oral argument in this court concedes that on numerous occasions the Missouri Supreme Court has accepted pro se briefs filed by defendants already represented by counsel. See, e.g., State v. Wise, 879 S.W.2d 494, 525 (Mo. 1994); O'Neal v. State, 766 S.W.2d 91, 92 (Mo. banc.1989); State v. Clemmons, 753 S.W.2d 901, 908 (Mo. banc 1988); State v. Guinan, 732 S.W.2d 174, 177 (Mo. banc 1987); State v. O'Neal, 718 S.W.2d 498, 503 (Mo. banc 1986); State v. Bannister, 680 S.W.2d 141, 146 (Mo. banc 1984); State v. Laws, 661 S.W.2d 526, 529 (Mo. banc 1983); State v. Peterson, 518 S.W.2d 1, 2, 4 (Mo.1974); Mooring v. State, 501 S.W.2d 7, 10 (Mo.1973); State v. Turley, 452 S.W.2d 65, 66-67 (Mo.1970).

The state contends, however, that over the past twelve years there have not been any pro se briefs accepted by the Missouri Supreme Court when the author was represented by counsel. It argues that the record is thus very different from the one we surveyed in Clemmons. While this may be true, a change in the practice of the Missouri Supreme Court alone is not enough. For the rule on which it relied must have been a clear and ascertainable rule; here there is no such rule.FN5 We conclude that Winfield's conflict of interest claim is not procedurally barred by the court clerk's decision not to file his pro se brief. See Hall, 296 F.3d at 695; Clemmons, 124 F.3d at 948 n. 3. FN5. If it has now become the formal practice of the Missouri Supreme Court not to accept pro se briefs from parties represented by counsel or to accept them in limited circumstances, we encourage the court to articulate that practice clearly or to codify it formally in the rules.

That is not the end of the inquiry, however. The state alleges that Winfield's failure to file a timely conflict of interest claim with the circuit court bars habeas review, regardless of the effect of the Missouri Supreme Court clerk's refusal to file Winfield's pro se brief. Winfield responds that his failure to comply with the filing period in Rule 29.15 should not prevent us from reaching the procedural issue. He alleges that in order to bar review, the last state court to consider the case “must actually have relied on the procedural bar as an independent basis for its disposition of the case.” Harris v. Reed, 489 U.S. 255, 261-62, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). Missouri Supreme Court Rule 29.15 provides that a motion for post conviction relief must include “every claim known to the movant,” and any claim not raised in the initial Rule 29.15 motion is waived. Mo. S.Ct. Rule 29.15 (1979). Winfield did not include the conflict of interest claim in his initial 29.15 motion, and his attempt to amend the motion was denied as untimely. His conflict of interest claim was thus procedurally barred in the state circuit court proceeding on his post conviction motion, and the Missouri Supreme Court never reached the issue because it was only raised in Winfield's pro se brief which was not accepted for filing. No state court ruled on the merits of the claim, and the only court that considered it was the circuit court which denied it on procedural grounds.

In such circumstances federal courts considering petitions for habeas relief may “look through” the state supreme court decision to the last reasoned decision of the lower state court on that issue. Ylst v. Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); see also Oxford v. Delo, 59 F.3d 741, 745 (8th Cir.1995).FN6 In Ylst, the post conviction state court had found that the habeas petitioner defaulted on a claim and the state supreme court affirmed without written opinion. The petitioner alleged in his habeas action that the federal court could review the claim because the last state court to consider the case had not clearly and expressly relied on the procedural default in rendering its decision. The Supreme Court disagreed, concluding that when a subsequent state court decision did not touch on procedural default or lift a preexisting procedural default, then “its effect upon the availability of federal habeas relief is nil.” Ylst, 501 U.S. at 804 n. 3, 111 S.Ct. 2590. FN6. Winfield's reliance on our decision in Clemmons is misplaced, for Clemmons addressed only whether the refusal of the Missouri Supreme Court to accept a pro se filing by a party represented by counsel created a procedural bar preventing habeas review. It did not consider whether the state supreme court ruling in that case lifted a preexisting procedural bar since there the petitioner had properly presented his habeas claim in his initial Rule 29.15 motion. Clemmons, 124 F.3d at 947.

The Fifth Circuit applied Ylst in Steward v. Cain, 259 F.3d 374 (5th Cir.2001), where the state trial court had found a jury instruction claim procedurally defaulted and the appellate court had affirmed with a written opinion as to some issues but not as to the procedural one. The state supreme court then affirmed without opinion. The federal district court treated the first appellate decision as the last reasoned state decision and found that it had disposed of all claims on the merits, thus preserving them for habeas review. The Fifth Circuit reversed, rejecting the petitioner's argument that the last reasoned opinion was that of the state court of appeals, for “[w]hile the court of appeal's opinion was reasoned as to some issues, it was silent, and therefore not reasoned, as to Steward's [jury instruction claim].” Steward, 259 F.3d at 377. The last reasoned opinion was held to be that of the state trial court. Id.

For similar reasons, the last reasoned opinion of the Missouri courts on Winfield's conflict of interest claim was that of the circuit court which found the claim procedurally barred as untimely. Winfield does not dispute that he did not include his conflict claim in his initial filing or that the state circuit court properly ruled his claim defaulted. A finding of procedural default under Rule 29.15 serves as an independent and adequate state ground to bar consideration of an untimely petition, Sloan, 54 F.3d at 1381, and this claim is barred from review in federal court unless Winfield were to demonstrate cause and prejudice or miscarriage of justice. Malone, 138 F.3d at 719. He has not made such a showing and thus his conflict of interest claim is procedurally barred.

The state asks us in the alternative to consider the merits of Winfield's conflict of interest claim. In his reply brief Winfield argues that consideration of the merits is premature and that this court should only concentrate on the procedural question at issue since it is more easily resolved. Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir.1999) (en banc). Winfield's assumption that he is entitled to prevail on the procedural issue and his reliance on Barrett are misplaced. In Barrett the court was not considering a conflict of interest claim and it did not establish a rule requiring courts to abstain from considering the merits. To the contrary, we have the discretion to affirm the district court's decision on any ground supported by the record. Haas v. Kelly Servs., Inc., 409 F.3d 1030, 1034 (8th Cir.2005). We believe that the record before us, which includes the original trial transcript, the record of the circuit court's evidentiary hearing, Winfield's habeas petition, and numerous briefs, presents adequate information upon which to base a decision on the merits.

Claim four of Winfield's habeas petition alleged that the conflict of interest involving his attorneys rendered their assistance ineffective. He alleges two conflicts: that he filed a malpractice action against his attorneys prior to trial and that the two attorneys did not get along well which created divided loyalties. To prove ineffective assistance of counsel a petitioner must show both that his counsel's performance was deficient and that the deficiency prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In limited circumstances such as where a defendant can show that “an actual conflict of interest adversely affected his lawyer's performance,” we will presume prejudice rather than require an affirmative showing by the defendant. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Covey v. United States, 377 F.3d 903, 906 (8th Cir.2004).

The Cuyler rule presuming prejudice has not been extended by the Supreme Court beyond cases in which an attorney has represented more than one defendant, Mickens v. Taylor, 535 U.S. 162, 174-75, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), and our court has never determined whether it should be applied to other cases. See Covey, 377 F.3d at 907. We need not decide here whether the Cuyler rule extends to cases beyond those involving joint representation, for Winfield's claim fails under either that rule or the traditional Strickland test. Under Cuyler a defendant is required to show an actual conflict of interest that adversely affected his defense. 446 U.S. at 348, 100 S.Ct. 1708. To be successful Winfield would have to identify an actual and demonstrable adverse effect, “not merely an abstract or theoretical one.” United States v. Flynn, 87 F.3d 996, 1001 (8th Cir., 1996). To establish that there was a conflict in representation, the defendant must show “that the conflict caused the attorney's choice” to engage or not to engage in particular conduct. Covey, 377 F.3d at 908 (quoting McFarland v. Yukins, 356 F.3d 688, 705 (6th Cir.2004)). Such a showing requires the defendant to “identify a plausible alternative defense strategy or tactic that defense counsel might have pursued,' ”'show that the alternative strategy was objectively reasonable under the facts of the case,” and “establish that the defense counsel's failure to pursue that strategy or tactic was linked to the actual conflict.” Covey, 377 F.3d at 908 (citing Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir.2001) (en banc), aff'd 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002)).

Although Winfield lodges complaints regarding his lawyers' conduct at trial, specifically the strategy they employed, he has not put forth any reasonable alternative that counsel should have pursued. He argues that counsel attempted to obtain a spontaneous outburst from him at trial as part of their theory that he had “snapped” the night of the murders. Winfield contends they should have instead argued that he had acted out of rage and lacked premeditation. The defense Winfield proposes is not really an alternative to the one presented at trial, for the two defense theories are very similar. Moreover, even assuming that the trial strategy was a poor one, Winfield has failed to show that it was linked in any way to the alleged conflict between the lawyers.

Winfield's reply brief does not address whether the alleged conflict rendered penalty counsel's assistance ineffective, but his habeas petition alleges that Kessler's ill will towards Rosenblum “prevented him from helping with the penalty phase.” Winfield's habeas petition contends that the conflict prevented Kessler from ensuring “that the jury was aware of all relevant mitigating evidence” and from ensuring that he was able to testify during the penalty phase. Winfield does not present any alternative strategy that should have been pursued beyond merely introducing additional evidence of dubious value to his defense. As previously discussed, counsel was not ineffective for failing to call Winfield to testify at the penalty phase, and he has not shown that the decision not to call him resulted from the alleged conflict. The state had strong evidence at trial which was not rebutted: Winfield shot and killed two people and attempted to kill a third. We conclude that Winfield has not demonstrated that he suffered an adverse impact from any conflict of interest.

Winfield relies on our decision in Smith v. Lockhart, 923 F.2d 1314 (8th Cir.1991), for the proposition that his malpractice suit is enough to establish an actual conflict of interest under Cuyler. In Smith we stated that “[a] federal lawsuit pitting the defendant against his attorney certainly suggests divided loyalties,” 923 F.2d at 1321 (emphasis added), but nowhere did we indicate that such a suit established an actual conflict. Instead, Smith counsels that whether an actual conflict exists must be evaluated on a case by case basis. Id. at 1321. Nothing in our precedent suggests that the mere filing of a malpractice action is sufficient to create a conflict of interest. We recognized in Smith the dangers of “any holding implying that defendants can manufacture conflicts of interest by initiating lawsuits against their attorneys.” Id. at 1321 n. 11. The defendant there had objected to the appointment of a particular attorney to represent him prior to trial, alleging a conflict of interest. Id. at 1317. In contrast, Winfield hired both Kessler and Rosenblum to defend him and he did not alert the trial court to any possible conflict of interest, including the lawsuit he had filed in civil court.

Because Winfield has not shown an adverse impact under Cuyler, he is necessarily unable to prove prejudice under the more rigorous Strickland standard typically governing ineffective assistance claims. We therefore conclude that even if Winfield's conflict of interest claim had not been procedurally barred, it would fail on the merits.

IV.

Finally, Winfield asks this court to expand the certificate of appealability to consider whether to order resentencing and allow presentation of evidence that he acted under extreme emotional disturbance on the night of the murders. He complains that counsel relied on the pretrial medical findings that he was sane and competent to stand trial without delving further into medical issues that might affect his actions. He argues that Dr. Michael Stacey should be allowed to testify as to his diagnosis that Winfield suffers from Adjustment Disorder, which he characterized as “an acute reaction to situational stress.” Stacey opined that Winfield was suffering from it at the time of the shooting and attributed it to a number of psychological “stressors” in the weeks and months prior to the shootings.

A certificate of appealability will issue only when an applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Although we have the discretion to expand the certificate of appealability, we exercise that discretion carefully. Watts v. Norris, 356 F.3d 937, 941 (8th Cir.2004). Granting a certificate of appealability requires a demonstration that “a reasonable jurist” would find the district court ruling on the constitutional claim “debatable or wrong.” Tennard v. Dretke, 542 U.S. 274, 276, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004). The district court denied this claim because trial counsel had conducted a thorough investigation into the mental condition of his client prior to trial and penalty counsel made an informed decision not to introduce such evidence during the penalty phase. The record establishes that Winfield had been examined by two experts, one from the state and one requested by the defense. Both experts concluded that Winfield was not suffering from a mental or emotional illness at the time of the crimes and informed penalty counsel of their conclusions. Penalty counsel therefore chose not to put on mental health evidence.

Tactical decisions made after a thorough investigation are “virtually unchallengeable” on appeal. Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. Counsel is not required to shop for experts who will testify in a particular way, and penalty counsel's decision not to investigate this issue further was reasonable given the two concurring opinions of different doctors. Sidebottom v. Delo, 46 F.3d 744, 753 (8th Cir.1995). Moreover, Winfield, the master of his case, Hayes v. Lockhart, 852 F.2d 339, 348 (8th Cir.1988), told counsel that he did not want them to introduce evidence that he was suffering from an emotional disturbance at the time of the crime. Finally, had Dr. Stacey been called, his testimony would have contradicted Winfield's trial testimony denying that he was “upset, confused or angry” at the time he committed the crimes. Based on the record we do not find the district court's decision “debatable or wrong,” Tennard, 542 U.S. at 276, 124 S.Ct. 2562, and we therefore deny Winfield's request to expand the certificate of appealability.

V.

In sum, we conclude that the state court decision on Winfield's ineffective assistance claims was not contrary to federal law or based on an unreasonable determination of the facts and that Winfield's conflict of interest claim was procedurally barred and is also without merit. The district court did not err in denying habeas relief on each of the three grounds for which Winfield was granted a certificate of appealability, and we therefore affirm its judgment.