Opposition Brief — Delo v. Kenley

Veber :

Supreme Court, US.

FILED

D

) oct 16 1991

a OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

PAUL DELO, Superintendent,

Potosi Correctional Center,

Petitioner,

Vv.

KENNETH L. KENLEY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

OCT 17 1991

GFFICE OF THE CLERK

[SUPREME COURT, U.S.

RECEIVED

OF COUNSEL: MARY C. KICKHAM

Appointed Counsel for Respondent

ARMSTRONG, TEASDALE, Kenneth L. Kenley

SCHLAFLY & DAVIS One Metropolitan Square, Suite 2600

St. Louis, Missouri

(314) 621-5070

THOMAS J. COTTER

Counsel of Record

63102-2740

Appointed Counsel for Respondent

Kenneth L. Kenley

100 North Broadway, Suite 1600

St. Louis, Missouri

(314) 231-8700

63102

QUESTIONS PRESENTED

THIS COURT SHOULD NOT GRANT CERTIORARI HEREIN, BECAUSE THIS

CASE PRESENTS NO SPECIAL AND IMPORTANT REASONS FOR THIS COURT TO

EXERCISE ITS DISCRETIONARY JURISDICTION.

az.

THE COURTS OF APPEAL MUST APPLY THE GUIDELINES OF STRICKLAND

v._ WASHINGTON TO THE FACTS AND CIRCUMSTANCES OF EACH INDIVIDUAL

CASE TO DETERMINE EFFECTIVENESS OF COUNSEL.

-i-

TABLE OF CONTENTS

PAGE

Gee eee es eS lk ee wb a ee eee’ Bele eee

ae ee GS oc es et ce ele Se ee et ee SU Oe eS Oe ee

ee ee ee. SG ke we ee ee a ee eee

oe a ee ee a ae ee

ee ee ee ee ae ee ee ee ee ee ee ee ae ee ee eee

® This Court Should Not Grant Certiorari Herein,

Because This Case Presents No Special And

Important Reasons For This Court To Exercise Its

DASCCOLAGRGTy GeraeeeeesG. os 8 se a ee ee oe te

II. The Courts of Appeal Must Apply The Guidelines

Of Strickland v. Washington To The Facts And

Circumstances Of Each Individual Case To Determine

Effectiveness Of Counsel. <°@

A. The Eighth Circuit Properly Applied the

Cause Prong of the Strickland Test to the

py 7 ee ee ee ee ee er

B. The Eighth Circuit Properly Found Respondent

had been Prejudiced ee a ee ae es a 10

Genet. se 6 ene el oe 6 el ee ale wee bow) 6 4a eo eee

Cea ue eueee Ge Gemvicee. <6 %. 8 els ew ee eh lt tl le lu ee ee

TABLE OF AUTHORITIES

CASES

Burden v. Zant, U.S. P

112 L.Ed.2d 962 (1991)

111 $:Ct. 862,

Chambers v. Armontrout, 907 F.2d 825 (8th Cir.)

(en banc), cert. denied, 111 S.Ct. 369,

112 L.Ed.2d 331 (1990) ses

Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18,

70 L.Ed.2d 1 (1981) Me gris PS = a8 i ear tae

Kenley v. Armontrout, 937 F.2d 1298 (8th Cir. 1991)

reh. denied Nos. 89-2915, 90-1015

(August 13, 1991)

Kenley v. State, 759 S.W.2d 340 (Mo. App. 1988)

Lawrence v. Armontrout, 900 F.2d 127 (8th Cir. 1990)

Layne & Bowler Corp. v. Western Well Works, Inc.,

261 U.S. 387, 43 S.Ct. 422, 67 L.Ed. 712 (1923)

Sioux City Memorial Park Cemetery, Inc.,

U.S. 70, 75 S.Ct. 614, 99 L.Ed. 897 (1955)

Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984) gas

Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303,

71 L.Ed.2d 480 (1982) ae Repeal a

Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060,

103 L.Ed.2d 334 (1989) Mabey Peeper

United States v. Gray, 878 F.2d 702 (3rd Cir. 1989)

STATUTES

28 U.S.C. § 2254

RULES

Rule 10.1, Rules of the United States

Supreme Court oe tals woes

-iii-

PAGE

passim

9

11

passim

10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

No. 91-483

PAUL DELO, Superintendent,

Potosi Correctional Center,

Petitioner,

Vv.

KENNETH L. KENLEY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

Respondent is compelled to correct and clarify Petitioner's

Statement of the Case by adding facts omitted by Petitioner.

This case is fact intensive and specific, involving a new lawyer

who completely failed to investigate mitigating wikiineanin and

failed to present mitigating evidence in the death penalty phase

of Respondent's trial. Petitioner's rendition of the facts of

Respondent's three hour crime spree is a transparent attempt to

garner sympathy for his position, and has no place in a Petition

for Writ of Certiorari. It is not surprising that once again

Petitioner declines to focus on trial counsel's representation of

Respondent. At the time of his appointment to this capital case,

trial counsel was a new county public defender, just three months

out of law school with no trial experience. The capital trial

occurred six months after appointment when counsel had tried one

burglary case. The Eighth Circuit aptly summarized trial

counsel's abysmal performance during the guilt phase of the

capital trial and the noncapital trial and trial counsel's

constitutionally deficient performance in the sentencing phase of

the capital trial as follows:

Prior to the capital trial, counsel waived an

automatic change of venue despite the wide

publicity Kenley's crimes had received. During

voir dire, counsel performed little inquiry into

the attitudes of the jurors toward capital

punishment and into jurors' ability to consider a

range of possible punishments. Counsel waived

opening statement and only asked thirty-six

cross-examination questions of eight out of

twenty-six witnesses. Counsel did not challenge

somewhat inaccurate descriptions of Kenley and his

vehicle, did not challenge ambiguities and

inconsistencies in witness statements, and did not

object to a surprise pathologist's report.

Counsel also did not object to the admission of

cumulative and potentially prejudicial testimonial

evidence regarding Kenley's identity, the victim's

family, and other weapons unrelated to the crime.

Counsel made a short, unremarkable closing

argument and submitted no jury instructions.

Capital murder, second degree murder and

manslaughter instructions were given by the court.

At the capital sentencing, counsel submitted

no mitigating evidence although Kenley's age was

stipulated and the prosecution introduced Kenley's

single prior conviction. Counsel unwittingly made

reference to Kenley's failure to testify and did

not object to evidence regarding the deterrent

effect of the death penalty introduced by the

prosecution. Many similar events occurred (or

failed to occur) at Kenley's noncapital trial. In

«De

addition, counsel made no closing argument and did

not move for severance of charges (robbery,

kidnapping, assault and theft). By the close of

the noncapital trial, counsel had accepted a job

with the prosecuting attorney's office.

Kenley v. Armontrout, 937 F.2d 1298, 1300-1301 (8th Cir. 1991).

The undivided panel's twenty-four page opinion is a

well-reasoned, well-written discourse of Respondent's claims of

failure to investigate and failure to present mitigating evidence

in the state court. The Eighth Circuit's opinion also

demonstrates the prejudice suffered by Respondent in the

sentencing stage of his capital trial by trial counsel's

ineffective performance.

ARGUMENT

i This Court Should Not Grant Certiorari Herein, Because

This Case Presents No Special And Important Reasons For

This Court To Exercise Its Discretionary Jurisdiction.

Petitioner clearly has not demonstrated that the opinion of

the panel warrants certiorari. Rule 10.1, Rules of the United

States Supreme Court, clearly provides that this Court's

certiorari review is discretionary, and should be exercised "only

when there are special and important reasons therefor." Rule

10.1, Rules of the Supreme Court of the United States. The

purpose of the writ of certiorari is not to correct possible

errors made by federal courts of appeal. This Court has held:

[I]t is very important that we be consistent in

not granting the writ of certiorari except in cases

involving principles the settlement of which is of

importance to the public as distinguished from that of

the parties, and in cases where there is real and

embarrassing conflict of opinion and authority between

the circuit courts of appeals.

Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387,

393, 43 S.Ct. 422, 423, 67 L.Ed. 712 (1923). Rice v. Sioux City

Memorial Park Cemetery, Inc., 349 U.S. 70, 79, 75 S.Ct. 614, 99

L.Ed. 897 (1955).

Petitioner has not shown, nor even alleged, that special and

important reasons exist for this Court to exercise its

jurisdiction. Moreover, Petitioner almost concedes that this

case does not meet the standards of Rule 10. This case does not

involve a conflict between the circuits or a question of an

unsettled principle of federal .law. Instead, Petitioner argues

that this Court should grant certiorari to deter misconduct by

the federal Courts of Appeals that erroneously apply existing

federal law. Petition at 1l. In support of this argument,

Petitioner cites Burden v. Zant, U.S. _ pha 2-6. O62, 112

L.Ed.2d 962 (1991); Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303,

71 L.Ed.2d 480 (1982); and Duckworth v. Serrano, 454 U.S. 1, 102

S.Ct. 18, 70 L.Ed.2d 1 (1981).

Each of the three cases cited by Petitioner involve the

blatant failure by the lower courts to follow the clear dictates

of federal statutes. In Burden and Sumner, the lower courts

disregarded the presumption of correctness doctrine embodied in

2254(d) without citing any authority or any discussion of the

application of any exception as required in that statute. In

Duckworth, the lower court disregarded the exhaustion requirement

without citing any authority or any established legal exception

that would excuse the failure to exhaust in that case. In

contrast, in Respondent's case, the Eighth Circuit clearly

followed the Strickland cause and prejudice analysis and merely

applied it to the facts of Respondent's case. It, therefore,

would stretch the imagination to compare what the Eighth Circuit

did in Kenley with the three previously mentioned cases.

Petitioner next argues that the purpose of federal habeas

corpus is to deter state court misconduct in interpreting federal

constitutional law, citing Teague v. Lane, 489 U.S. 288, 306, 109

S.Ct. 1060, 1072-1073, 103 L.Ed.2d 334 (1989), and tries to

extend the purpose of the writ of certiorari to include deterring

misconduct of the federal courts citing no authority. Petitioner

quotes Teague v. Lane out of context. The passages out of Teague

regarding deterrence of state court misconduct embody Justice

Harlan's view that retroactive application of new constitutional

laws undermine the state court's role in applying the law as it

existed at the time of a litigant's trial and state appeals.

Justice Harlan is quoted in Teague as follows:

The threat of habeas serves as a necessary additional

incentive for trial and appellate courts throughout the

land to conduct their proceedings in a manner

consistent with established constitutional standards.

In order to perform this deterrence function, .. . the

habeas court need only apply the constitutional

standards that prevailed at the time the original

proceedings took place.

Teague v. Lane, 489 U.S. 288, 306, 109 S.Ct. 1060, 1073, 103

L.Ed.2d 334 (1989).

' as mentioned in Teague and

What is meant by "deterrence,'

quoted by Petitioner, is that the state courts properly follow

and apply existing federal constitutional law during state

proceedings. There is no requirement that a federal court

specifically find misconduct on the part of the state courts to

justify habeas relief.

Petitioner further argues that because there is no

allegation of state court misconduct in Kenley's case and because

Kenley had a hearing on these issues in state court, this case is

beyond the scope of federal habeas relief. Petitioner's argument

is inconsistent with the plain language of 28 U.S.C. § 2254,

which provides that a federal court "shall entertain an

application for writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a state court only on the

ground that he is in custody in violation of the constitution or

laws or treaties of the United States." Therefore, Petitioner's

argument is clearly an attempt to circumvent the plain language

of § 2254's provisions on the scope of federal habeas relief.

Accordingly, the conclusory statements made by Petitioner do not

demonstrate a question of exceptional importance or a conflict

between the law of the circuits and this Court should not grant

Petitioner's Petition for Writ of Certiorari.

II. The Courts of Appeal Must Apply The Guidelines

Of Strickland v. Washington To The Facts And

Circumstances Of Each Individual Case To Determine

Effectiveness Of Counsel.

The case at bar presents a unique set of circumstances,

unlike those in any case cited by Petitioner or Respondent

throughout this litigation. Respondent was tried and convicted

of capital murder and sentenced to death. His death sentence was

set aside by the United States Court of Appeals for the Eighth

Circuit.

The bulk of Petitioner's argument is that the Eighth Circuit

erroneously applied the cause and prejudice standards of

Strickland v. Washington. The Eighth Circuit's decision that

Respondent's trial counsel was ineffective simply applied to the

facts herein this Court's standards as set out in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

This Court has often pointed out, there is no clear rule as to

what constitutes effective or ineffective assistance of counsel.

Ineffectiveness in each case must be decided on the basis of its

own facts and circumstances. Id. at 688-690. This Court has

already set parameters to guide the lower courts in making this

determination. Id. These parameters were clearly followed by

the Eighth Circuit in Kenley v. Armontrout, 937 F.2d 1298 (8th

Cir. 1991) reh. denied Nos. 89-2915, 90-1015 (August 13, 1991),

and do not need further clarification by this Court. Strickland

v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). It is difficult to see how the Eighth Circuit's decision

in this case could have a broad application or importance beyond

the unique factual limits of the case at bar.

A. The Eighth Circuit Properly Applied the

Cause Prong of the Strickland Test to the

Facts of This Case.

Petitioner argues that the Eighth Circuit failed to

give proper deference to the presumption that trial counsel

provided effective assistance and avoid the "distorting effect of

hindsight." This assertion is totally without merit. At the

beginning of its Strickland analysis in the Kenley opinion, the

United States Court of Appeals for the Eighth Circuit quoted

language from Strickland:

With the performance test, we start by presuming that

counsel provided effective assistance, and we do not

use hindsight to question counsel's performance.

Kenley v. Armontrout, 937 F.2d at 1303 (quoting Strickland v.

Washington at p. 687-688). Again, at the conclusion of its

Strickland analysis, the Eighth Circuit panel quotes from

Strickland as follows:

The state argues and the district court infers that

recent case authority in our circuit does not support

the legal conclusions we reach in this case, and

suggests that our existing authority creates an almost

insurmountable barrier to habeas relief. We disagree

with this general characterization of our case

authorities although, as a practical matter, the strong

presumption in favor of counsel and the heavy burden on

the defendant established by the Supreme Court in

Strickland means determination of ineffective

assistance of counsel such as in the present case will

likely occur infrequently.

Kenley v. Armontrout, 937 F.2d at 1309. In light of these

specific quotations of Strickland by the Eighth Circuit panel, it

is clear that the Eighth Circuit did consider and correctly apply

the performance prong of the Strickland test.

The parameters set out in Strickland v. Washington, 466 U.S.

668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984), for

measuring the effectiveness of counsel's performance, apply with

particular relevance to the instant case.

Strategic choices made after thorough investigation of

law and facts relevant to plausible options are

virtually unchallengeable; and strategic choices made

after less than complete investigation are reasonable

precisely to the extent that reasonable professional

judgments support the limitations on investigation. In

other words, counsel has a duty to make reasonable

investigations or to make a reasonable decision that

makes particular investigations unnecessary.

~s

Strickland v. Washington, 466 U.S. 668, 690-691, 104 S.Ct. 2052,

2066, 80 L.Ed.2d 674 (1984). Characterizing an act or omission

as trial strategy puts the stamp of reasonableness on it, and

makes it “virtually unchallengeable." However, it is clearly the

intent of Strickland that the question of reasonableness is a

legal one. The State of Missouri suggests the federal reviewing

court can't make that determination, contrary to Strickland.

"Ineffectiveness is not a question of ‘basic, primary or

historical fact' (citations omitted) ... it is a mixed question

of law and fact." Strickland v. Washington, supra, at 689.

Petitioner states that the Court of Appeals did not find

misconduct by the state court. Petition for Writ at p. 13. The

Eighth Circuit properly disagreed. Kenley, 937 F.2d at 1308.

Moreover, the record of the state proceedings on

Respondent's 27.26 motion did not fairly support the state

court's determination that trial counsel's decision not to

present mitigating evidence was trial strategy. The record was

limited to the consideration of the evidence Dr. Manion and

Mrs. Crownover could have presented. No consideration was given

to the other mitigating evidence that was available. The court

did not take into account psychiatric evidence from the military,

nor did trial counsel request appointment of a psychiatrist. The

state court specifically commented on the fact that there was a

conflicting report only three months old which revealed no mental

defect which was contrary to the six year old information. See

Kenley v. State, 759 S.W.2d 340, 346 (Mo. App. 1988). The Eighth

Circuit noted:

In sum, the state court fact findings were incomplete

and counsel's decision to stop investigating was

unreasonable because his belief that mitigating

evidence was too old and insubstantial resulted from

his failure to follow available leads to more recent

and versuasive mitigating evidence. Counsel's

investigation fell short of what was required in this

case.

Kenley, 937 F.2d at 1308.

Each case with an ineffectiveness claim must be judged on

its own facts and circumstances. Strickland v. Washington, 466

U.S. 668, 689-690, 104 S.Ct. 2052, 2065-2066, 80 L.Ed.2d 674

(1984). That is precisely what was done in this case. The

Eighth Circuit noted:

Here it was not a reasonable strategy that led counsel

not to investigate, but lack of thoroughness and

preparation. "Counsel can hardly be said to have made

a strategic choice against pursuing a certain line of

investigation when s/he has not yet obtained the facts

on which such a decision could be made." Chambers, 907

F.2d at 835 (quoting United States v. Gray, 878 F.2d

702, 711 (3rd Cir. 1989)).

Kenley, 937 F.2d at 1308. The United States Court of Appeals for

the Eighth Circuit made a determination, pursuant to Strickland,

that Respondent's trial counsel limited his investigation ina

manner not supported by a reasonable professional judgment. Id.

The court makes clear that this decision is unreasonable in view

of the unique and cumulative facts of this case. Id.

B. The Eighth Circuit Properly Found Respondent

had been Prejudiced. _

Petitioner further argues that the Eighth Circuit misapplied

_ the prejudice prong of the Strickland test, however, in the

process Petitioner completely misstates the law.

The court clearly and correctly followed Strickland, finding

that if evidence had been presented, there is a reasonable

-10-

probability that "the result would have been different." Kenley

v. Armontrout, 937 F.2d at 1308. Strickland v. Washington, 466

U.S. 668, 694-695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In

discussing the prejudice prong, the Eighth Circuit stated that:

"we have demonstrated that the state court fact finding was not

supported by the record." Kenley, 937 F.2d at 1308. Ineffective

assistance of counsel is a mixed question of law and fact. The

Eighth Circuit was not bound by the state court's findings on

this issue. See Lawrence v. Armontrout, 900 F.2d 127 (8th Cir.

1990). The Eighth Circuit stated:

We believe there is a reasonable probability Kenley

would not have received a death sentence if some of the

mitigating evidence had been presented.

Kenley, 937 F.2d at 1308.

After full briefing and argument and review of the entire

record, the Eighth Circuit unanimously concluded that this

evidence was mitigating and substantial and that it undermined

their confidence in the outcome of the sentencing phase under the

proper application of the Strickland test.

We have demonstrated that the state court fact finding

was not supported by the record because the potential

mitigating evidence was substantial. We do not agree

as a matter of law that there was no prejudice because

the other evidence would have significantly worsened

the perception of Kenley's character. Rather, we

believe the testimony would have put the aggravating

evidence in context along with the mitigating evidence.

The state courts' conclusion on this issue was based on

counsel's beliefs that the mitigating evidence would be

unpersuasive to a jury in light of Dr. Parwatikar's

report and additional potentially aggravating

information. We do not believe reasonably effective

counsel would have reached the same conclusion if, in

addition to reviewing Crownover's records, counsel

would have interviewed Dr. Manion and Dr. Richards or

eile

at least reviewed their reports, reviewed Kenley's

military file, and interviewed family witnesses

concerning Kenley's history and his condition the

morning after arrest. This additional information

would have been more than enough to mount a challenge

to Parwatikar's report .. . Also, Kenley's alcohol

problems were well documented by all doctors, and when

combined with other evidence from the sheriff, news

accounts and family testimony, would have been

probative mitigating evidence of intoxication.

Kenley v. Armontrout, 937 F.2d at 1308. Further, Petitioner's

disagreement with the unanimous conclusion of the Eighth Circuit

panel as to the weight of the mitigating evidence would not

justify the Supreme Court's exercise of its discretionary review

under a writ of certiorari.

Finally, Petitioner seems to argue that the panel opinion

will have an adverse effect on other capital habeas litigation in

the Eighth Circuit. Petitioner cites approximately eight cases

out of the Eighth Circuit in which the court found ineffective

assistance of counsel, purportedly due to the misapplication of

the Strickland test. Reading this argument between the lines,

Petitioner appears to be arguing that under Kenley that the

jailhouse door will be opened and every future capital litigant

in the Eighth Circuit is going to be granted relief on their

ineffective assistance of counsel claims. This view is

incredible in light of the fact that Petitioner can cite only

eight cases where habeas litigants have received relief on an

ineffective assistance of counsel claim when there are

undoubtedly hundreds of cases in the last ten years in which the

Eighth Circuit has rejected such claims.

Indeed, Petitioner previously argued that recent case

authority in the Eighth Circuit does not support the legal

ei2e«

conclusion reached in this case. The State argued and apparently

believes that existing authority creates an almost insurmountable

barrier to habeas relief. The Eighth Circuit, however, has found

that failure to interview witnesses or discover mitigating

evidence relates to trial preparation and not trial strategy.

Chambers v. Armontrout, 907 F.2d 825, 828 (8th Cir.) (en banc),

cert. denied, 111 S.Ct. 369, 112 L.Ed.2d 331 (1990).

The Eighth Circuit panel was clearly correct in stating that

Kenley is an exceptional case involving a rare situation where

ineffectiveness can be proven under the Strickland test. Kenley,

937 F.2d at 1309. The undivided panel opinion of the Eighth

Circuit is consistent with the opinion of this Court in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). The Eighth Circuit's decision is correct and

certiorari is unnecessary.

«13

CONCLUSION

The United States Court of Appeals for the Eighth Circuit

correctly applied the standards set forth for judging an

ineffectiveness claim in Strickland v. Washington to the facts of

this case. Petitioner has advanced no compelling reason for

certiorari. Respondent respectfully suggests that Petitioner's

Petition for Writ of Certiorari should be denied.

Respectfully submitted,

OF COUNSEL: —™ /d Kuehl

QML x * l Rall am

ARMSTRONG, TEASDALE, Mary C. Kickham

SCHLAFLY & DAVIS Counsel of Record

Appointed Counsel for Respondent

One Metropolitan Square, Suite 2600

St. Louis, Missouri 63102-2740

(314) 621-5070

Thomas J. Cot

Counsel of Regord

Appointed Counsel for Respondent

100 North Broadway, Suite 1600

St. Louis, Missouri 63102

(314) 231-8700

wise

CERTIFICATE OF SERVICE

I hereby certify that I am a member of the Bar of this Court

and that three true and correct copies of "Brief in Opposition to

Petition for a Writ of Certiorari to the United States Court of

Appeals for the Eighth Circuit" in the case of Paul Delo,

5 int Sent. Pot ic 1 Cent . 2 th L. Kenley,

No. 91-483, were mailed, pursuant to Supreme Court Rule 29.5(b),

postage prepaid, this /6 day of October, 1991, to:

William L. Webster, Attorney General

Stephen D. Hawke, Assistant Attorney General

P. O. Box 899

Jefferson City, Missouri 65102

Twelve copies of the above-referenced Brief were mailed to

William Suter, Clerk, United States Supreme Court, pursuant to

Supreme Court Rule 39.5, this date, the /E¥—- day of October,

THOMAS J. COPTER

o$$-