Petition for Writ of Certiorari — Delo v. Lashley

(ew In The

Supreme Court of the United States

October Term, 1992

PAUL DELO, SUPERINTENDENT

Potosi Correctional Center,

Petitioner,

we

FREDERICK LASHLEY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

WILLIAM L. WEBSTER

Attorney General

State of Missouri

RONALD L. JURGESON

Assistant Attorney General

Counsel of Record

Penntower Office Center

3100 Broadway, Suite 609

Kansas City, Missouri 64111

(816) 531-4207

Attorneys for Petitioner

QUESTIONS PRESENTED FOR REVIEW

I.

WHETHER THE EIGHTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

CONSTITUTION REQUIRE A STATE TRIAL COURT TO

INSTRUCT THE JURY ON A SPECIFIC STATUTORY

MITIGATING CIRCUMSTANCE (THAT THE

DEFENDANT HAS NO SIGNIFICANT HISTORY OF

CRIMINAL ACTIVITY) WHEN THE CRIMINAL

DEFENDANT PRESENTS NO AFFIRMATIVEEVIDENCE

DURING THE GUILT PHASE OR THE PUNISHMENT

PHASE OF THE CRIMINAL TRIAL (THEREBY LEAVING

A "BLANK SLATE" BEFORE THE JURY) TO SUPPORT

THE INSTRUCTION AND WHEN THE PENALTY PHASE

INSTRUCTIONS AS A WHOLE ALLOW THE JURY TO

CONSIDER AND GIVE EFFECT TO ANY MITIGATING

CIRCUMSTANCE”?

II.

WHETHER A STATE TRIAL JUDGE’S OMISSION TO

INSTRUCT THE JURY ON A_ MITIGATING

CIRCUMSTANCE CAN BE CONSIDERED A HARMLESS

ERROR WHEN REVIEWED IN A FEDERAL HABEAS

CORPUS ACTION?

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW ........... i

TABLE OF CONTENTS ..nsccccvvcvcvcvcsssseses ii

TABLE OF AUTHORITIES ....cccccvcccssessssss V

OPINIONS BELOW ......cccsccncccvccsscessseenn |

STATEMENT OF JURISDICTION ................. |

CONSTITUTIONAL AND STATUTORY PROVISIONS 2

STATEMENT OF THE CASE .....cccscvccccevcses 3

ARGUMENT .....scccccsscsteeuue ee eee eEEE 7

I.

A STATE TRIAL COURT HAS NO

CONSTITUTIONAL DUTY TO INSTRUCT

THE JURY ON A SPECIFIC STATUTORY

MITIGATING CIRCUMSTANCE (THAT

THE DEFENDANT HAS NO SIGNIFICANT

HISTORY OF CRIMINAL ACTIVITY)

WHEN THE CRIMINAL DEFENDANT

PRESENTS NO AFFIRMATIVE EVIDENCE

DURING THE GUILT PHASE OR THE

PUNISHMENT PHASE OF THE CRIMINAL

TRIAL (THEREBY LEAVING A "BLANK

SLATE" BEFORE THE JURY) TO SUPPORT

THE INSTRUCTION AND WHEN THE

PENALTY PHASE INSTRUCTIONS AS A

WHOLE ALLOW THE JURY TO

CONSIDER AND GIVE EFFECT TO ANY

MITIGATING CIRCUMSTANCE. ............ 7

II. A STATE TRIAL JUDGE'S OMISSION TO

INSTRUCT THE JURY ON A MITIGATING

CIRCUMSTANCE CAN BE CONSIDERED

HARMLESS ERROR AND, IN THIS CASE,

IS HARMLESS UNDER ANY STANDARD

CCC eE ECs esseccececccecces

ee ee ne

APPENDIX

(under separate cover)

APPENDIX 1: The March 4, 1992, Opinion of the

United States Court of Appeals for the Eighth

EMU MEE EG cease sccccececcccccce:

APPENDIX 2: The July 1, 1992, Order denying the

petition for rehearing or rehearing en banc .

APPENDIX 3: The July 20, 1992, Judgment of the

United States District Court for the Eastern

CE

APPENDIX 4: The December 13, 1989 Order of the

United States District Court for the Eastern

ce

APPENDIX 5: The December 13, 1989, Memorandum

of the United States District Court for the

Eastern District of Missouri ...............

APPENDIX 6: The January 3, 1989 Order of the

United States District Court for the Eastern

rr

APPENDIX 7: The June 9, 1988 Order of the United

States District Court for the Eastern District of

Neen cccccen

a

APPENDIX 8: Portions of the March 29, 1988 Report

and Recommendation of United States

DAMGIOITEES 0. ccc ccc cece ccesesecsesess A-32

APPENDIX 9: The March 20, 1984 opinion of the

Supreme Court of Missouri in respondent's

Givect apped 2... wc ccc cece ccecccesseces A-39

APPENDIX 10: Petitioner's Petition for Rehearing or

Rehearing en banc filed in the United States

Court of Appeals for the Eighth Circuit ...... A-49

APPENDIX 11: The May 14, 1987 petition for a writ of

habeas corpus filed on behalf of respondent in

the United States District Court for the Eastern

Dhsesies CF DERROUE 2 ww cc cccccccececcccs A-64

APPENDIX 12: Missouri Revised Statute, Section

565.012, 1982 Supplement ................ A-78

APPENDIX 13: Portion of the transcript from the

original criminal trial (including punishment

phase instruction conference and punishment

phase closing argument) .............055: A-82

APPENDIX 14: Missouri Approved Instruction -

Criminal (Second Edition) -- Number 15.44 . . . A-102

APPENDIX 15: Missouri Approved Instruction -

Criminal (Second Edition) -- Number 15.46. . . A-106

iV

TABLE OF AUTHORITIES

Cases Page(s)

Arizona v. Fulminante, 111 S.Ct. 1246 (1991) ....... 21, 24

Blystone v. Pennsylvania, 110 S.Ct. 1078 (1990) ........ 28

Boyde v. California, 110 S.Ct. 1190 (1990) ............ 10

Brecht v. Abrahamson, 944 F.2d 1363 (7th Cir.

1991) cert. granted, 112 S.Ct. 2937 (1992) ....... 21

Briley v. Bass, 750 F.2d 1238 (4th Cir. 1984),

cert. denied, 470 U.S. 1088 (1985) ............. 14

Byrd v. Delo, 94 F.2d 1226 (8th Cir.), stay

mated, BES DAR. U7 CIGTRD ow. cc ccc ccc cccnces 15

Chapman v. California, 386 U.S. 18 (1967) ......... 23, 24

Clemmons v. Mississippi, 110 S.Ct. 1441 (1990) ........ 24

Cupp v. Naughten, 414 U.S. 141 (1973) .............. 28

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ......... 24

Demps v. Dugger, 874 F.2d 1385 (11th Cir. 1989),

cert. denied, 110 S.Ct. 1834 (1990) .......... 23, 25

Eddings v. Oklahoma, 455 U.S. 104 (1982) ...... 11, 13, 22

Estelle v. McGuire, 112 S.Ct. 475 (1991) .... 2... 14, 18, 28

Franklin v. Lynaugh, 487 U.S. 164 (1988) ............ 10

Graham v. Collins, 950 F.2d 1009 (Sth Cir.),

cert. granted, 112 S.Ct. 2937 (1992) ............ 10

Hamilton v. Nix, 809 F.2d 463 (&th Cir.) (en

banc), cert. denied,

ee ee 23

Hitchcock v. Dugger, 481 U.S. 391 (1987) ....... 22, 23, 25

Hopper v. Evans, 456 U.S. 605 (1982) ............. 12, 23

Hutchins v. Garrison, 724 F.2d 1425 (4th Cir.

1983), cert. denied, stay denied,

ee Ge PED os wt a'n-6 6: 66.0:0:4-00005 passim

Jones v. Murray, 947 F.2d 1106 (9th Cir. 1991),

cen. denied, 112 S.Ct. 1591 (1992) .......... 14, 28

Lashley v. Armontrout, 957 F.2d 1495 (8th Cir.

PD Suda beeneseeseethusnbess¥éeneds passim

Lashley v. State, 721 S.W.2d 31 (Mo.App., E.D.

1986), cert. denied, 481 U.S. 1024 (1987) ........ 6

Lewis v. Jeffers, 110 S.Ct. 3092 (1990) ............. 14, 15

Lockett v. Ohio, 438 U.S. 586 (1978) ............. passim

Parker v. Dugger. 111 S.Ct. 731 (1991) ........... passim

Peek v. Kemp, 784 F.2d 1479 (11th Cir. 1986)

(en banc), cert. denied, 479 U.S.

DP cine spieveble ius ceeeue accesses 28

Penry v. Lynaugh, 109 S.Ct. 2934 (1989) .......... passim

People v. Cornett, 33 Cal.2d 33, 198 P.2d

Ea ee ee 18

Ross v. Cinsh, SFB US. SID nn wc cece ccccees 23, 24, 25

Sawyer v. Whitley, 112 S.Ct. 2514 (1992) ............., 25

Skipper v. South Carolina, 476 U.S. 2 (1986)... 2... ... 22

Sochor v. Florida, 112 S.Ct. 2114 (1992) ............. 24

State v. Battle, 661 S.W.2d 487 (Mo. banc),

cen. denied, 466 U.S. 993 (1984)... 00 oe, 12

State v. Daugherty, 631 S.W.2d 637 (Mo. 1982) ........ 12

State v. Guzman, 100 N.M. 756, 676 P.2d 1321 (1984),

cent. denied, 467 U.S. 1256 (1984)... 2... 2... 18

State v. Hutchins, 303 N.C. 321, 279 S.E.2d

SS Se re 17

State v. Lashley, 667 S.W.2d 712 (Mo. banc),

cen. denied, 469 U.S. 873 (198%4) .. 0.0... passim

State v. Stokes, 630 S.W.2d 715 (Mo. banc 1982),

cen. denied, 460 U.S. 1017 (1983)... 2... 25

Teague v. Lane, 489 U.S. 288 (1989) ................ 19

Wainwright v. Goode, 464 U.S. 78 (1983) ....... 15, 18, 19

Walton v. Arizona, 110 S.Ct. 3047 (1990) ....... 10, 13, 16

Whisensant v. State, 482 So.2d 1241 (Ala. 1983) ....... 29

Woodard v. Sargent, 806 F.2d 153 (8th Cir. 1986) ..... 36

Woodson v. North Carolina, 428 U.S. 280 (1976) ...... 21

Wright v. West, 112 S.Ct. 2482 (1992) ............ 14, 19

Zant v. Stephens, 462 U.S. 862 (1983) ............... 1]

vil

Constitutional Provisions, Statutes & Rules

ite. F =, PPPTTET TLR TTT eee passim

ee GE IE FIG ccccccccsesccnscccecse passim

4 ee eee eee 2

ee EY 6 6-4-0 5 n-00.0000 00000004 05N60.0006% 2

I dv cvnvcovecsscesexesssccecs 16

Supreme Court Rate 00.18) ... cc cccscccceccccns 8, 19

Supreme Court Rate BO.0(C) ... 2... ceccccvens 8, 10, 24

UI GUND SEND BAAD 6 ccecccccccsnccccseusence 2

Supreme Court Rude 14.100) .. ccc cccsccccvccvecs 2

Se Ge ED RD 668606 00666605 ceewssseces 2

Ariz.Rev.Stat.Ann. § 13-703(C)(1991) ..........0..0.. 18

Cal. Penal Code §1105(a) (West Cum Supp. 1992) ..... 18

Comm AsemBemt. § SIOSGRE) on ccc ccc cccvsccccccecs 18

Mo. Revised Statute §565.001 (1978) ..............0.. 3

Mo. Revised Statute §565.012 (1982 Supplement) ....... 2

Mo. Revised Statute §565.012.3(1) (1982 Supplement) ... 7

Mo. Supreme Court Rule 27.26 (repealed) ............ 6

Nev.ROv.Stmt. GETS.S54.1 (IGP) . cee cc ccssscccvees 18

viii

i —_

N.C.Gen.Stat. §1SA-2000(b)(Michie 1988) ........... 18

42 Pa.Cons.Stat.Ann. §9711(c)(1)(ii)

ET a ee re 18

S.C.Code Ann. §16-3-20(c) (Law. Co-op.

DS hn. 6 o5'b nok os-00b bere eeeens 18

Tenn.Code Ann. §39-13-204(e)(1991) 2... ........0.. 18

| | PETE CC ORE TTT TET CTT TT eres passim

PPR er ee eee 11, 26, 28

ix

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

PAUL DELO, Superintendent,

Potosi Correctional Center,

Petitioner,

Vv.

FREDERICK LASHLEY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

OPINIONS BELOW

The panel opinion of the United States Court of Appeals for

the Eighth Circuit reversing and remanding respondent's

sentence of death is reported at 957 F.2d 1495 (8th Cir. 1992).

The opinion of the Court is reprinted in slip opinion form in

the appendix (Appendix -- hereinafter "App." -- at A-1 - A-21).

The judgment and orders of the United States District Court

for the Eastern District of Missouri, Eastern Division are not

reported. The various opinions of the District Court are

included in the appendix (App. A-24, A-25 - A-27, A-28 - A-29,

A-30 - A-31).

STATEMENT OF JURISDICTION

The United States Court of Appeals for the Eighth

Circuit issued its opinion on March 4, 1992 (App. A-1).

Superintendent Delo’s petition for rehearing or rehearing en

2

banc was denied by the Court of Appeals on July 1, 1992 (App.

A-22). Pursuant to 28 U.S.C. § 2201(c) and Supreme Court

Rule 13.1, the present petition for a writ of certiorari was

required to be filed by petitioner’ within 90 days. Jurisdiction

of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Eighth Amendment to the United States

Constitution provides:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishment inflicted.

Section 1 of the Fourteenth Amendment to the United

States Constitution provides:

All persons born or naturalized in the United

States and subject to the jurisdiction thereof are citizens

of the United States and of the State wherein they

reside. No state shall make or enforce any law which

Shall abridge the privileges or immunities of citizens of

the United States, nor shall any state deprive any person

of life, liberty or property without due process of law,

nor deny to any person within its jurisdiction the equal

protection of the laws.

Missouri Revised Statute, §565.012 (1982 Supplement)

' Current petitioner Paul K. Delo is respondent's custodian since

respondent's transfer from the Missouri State Penitentiary in

Jefferson City, Missouri, to the Potosi Correctional Center in Mineral

Point, Missouri.

3

is reproduced in the appendix (App. A-78 - A-81).

STATEMENT OF THE CASE

Respondent, Frederick Lashley, was convicted of capiial

murder, §565.001, Missouri Revised Statute (1978) (Repealed

October 1, 1984), for which he was sentenced to death by the

Circuit Court of the City of St. Louis, Missouri. The

circumstances surrounding respondent's crime were summarized

by the Missouri Supreme Court on direct appeal.

Defendant Frederick Lashley, 17, was

convicted of the capital murder of his physically

handicapped 55-year-old cousin and foster

mother, Janie Tracy, while robbing her of $15.

The punishment prescribed by the jury and

approved by the trial court is death. We affirm.

The victim lived alone in a downstairs

apartment in the City of St. Louis. She had

heart trouble, diabetes and a neuromuscular

problem that caused her to limp and required

her to use a walking cane. She had difficulty

walking since she had undergone a brain

operation a number of years ago. The operation

had resulted in the removal of a portion of her

skull on the left side of her head. Defendant

had lived with and been cared for by Miss Tracy

(and her mother) from the time he was two

years of age until he was sixteen years old. He

had been present on occasions when there had

been discussions concerning the soft spot on

Miss Tracy’s head.

On the night of April 9, 1981, Miss

‘Tracy was visiting her sister, Mrs. Williams, who

lived several blocks from the Tracy apartment.

Sometime before 8:30 p.m., defendant entered

4

the apartment by climbing through the top of a

window on the rear porch. He unscrewed the

light bulb in the front room so that the light

would not come on when the switch was turned

on. His admitted purpose was to ambush Miss

Tracy and take her money when she returned

home. Defendant, armed with a cast iron skillet

(and the jury could reasonably find he also had

a butcher knife having a seven and one-half inch

blade), waited in the dark in the bedroom

adjacent to the front room.

Miss Tracy left her sister's home

between 8:00 and 8:30 p.m., driving her car. In

his confessions to the police, one of which was

videotaped, defendant stated that when Miss

Tracy entered the tront door of the apartment

she attempted to turn on the light. When the

light did not come on she started into the room

where defendant was waiting. As she reached

for the light switch he struck her in the head

with the iron skillet, breaking it into two pieces.

He said she fell and began screaming and he put

his hand over her mouth. When asked where

the knife came from the defendant stated:

Off the floor. It was on-well,

really it was on the floor. That’s-I

mean, you know, I just see the knife and

then I grabbed it, you know. And then

she had it in her hand. We both had it.

And then I finally got it-got it back and

then that’s when I stuck her with it.

Defendant took $15 and car keys from

Miss Tracy’s purse, locked the front door on the

way out of the apartment, and drove off in the

victim’s automobile. He was apprehended while

5

driving the stolen vehicle shortly after midnight.

An upstairs neighbor of Miss Tracy, Mrs.

Ali, 81, had heard screams followed by

something which sounded "like a fall” from the

downstairs apartment. She telephoned the Tracy

apartment and when she did not get an answer,

called Mrs. Williams to come over and

investigate. Mrs. Williams and her husband went

to her sister’s apartment shortly after &:30 p.m.

Mrs. Williams noticed her sister’s car was not

parked outside. She had a key to the apartment

and upon entering it, saw her sister on the floor

of the bedroom, bleeding about the head. She

also saw a butcher knife near Miss Tracy and a

broken skillet on the bedroom floor. Police and

medical assistance were immediately summoned.

Hospital records showed Miss Tracy was

comatose and brain dead when she arrived at

the hospital. She had a cut on her head above

the right ear, "defense" knife cuts on her fingers,

and a one-inch incision above her left ear where

the knife entered her skull through the soft spot

and penetrated her brain. This stab wound

caused her death approximately 48 hours later.

Defendant did not testify at trial but his

written and videotaped confessions were

introduced by the State. In both he admitted

striking the defenseless woman with the skillet

with sufficient force to knock her down and then

plunged the butcher knife into her head.

State v. Lashley, 667 S.W.2d 712, 713-715 (Mo. banc) (footnote

omitted), cert. denied, 469 U.S. 873 (1983). On the basis of the

evidence introduced at trial, the jury found respondent guilty of

capital murder. In a separate penalty phase of the trial, the

6

same jury found the existence of a statutory aggravating

circumstance: to-wit, that the defendant murdered Janie Tracy

for the purpose of receiving money or any other thing of

monetary value. The jury assessed capital punishment as

respondent's penalty. The Missouri Supreme Court upheld the

conviction and sentence on direct appeal. /d.

Respondent Lashley then sought post-conviction relict

pursuant to former Missouri Supreme Court Rule 27.26

(repealed effective January 1, 1988). Respondent's post-

conviction motion was denied by the Circuit Court of the City

of St. Louis, Missouri. The appeal to the Missouri Court ot

Appeals was denied. Lashley v. State, 721 S.W.2d 31 (Mo.App.,

E.D. 1986), cert. denied, 481 U.S. 1024 (1987).

Lashley then began the federal attack upon his

conviction and sentence. Petitioner filed a petition for a writ of

habeas corpus on May 14, 1987, in the United States District

Court for the Eastern District of Missouri (App. A-64 - A-77).

After several stages of litigation, United States District Judge

Edward L. Filippine denied each allegation contained in

respondent’s petition (App. A-24, A-25 - A-27, A-28 - A-29, A-

30 - A-31). The District Court granted a certificate of probable

cause for appeal.

On appeal, the United States Court of Appeals for the

Eighth Circuit found, in a two-one decision, that respondent

was denied a protection of the Eighth Amendment because the

Missouri trial court refused to give a mitigating-circumstance

instruction that had been requested. Lashley v. Armontrout, 957

F.2d 1495, 1501-1502 (8th Cir. 1992) (App. A-1 - A-21).

Petitioner's petition for rehearing or rehearing en banc

was denied by the court of appeals on July 1, 1992 (App. A-22).

The present petition for a writ of certiorari ensues.

5

ARGUMENT

I.

A STATE TRIAL COURT HAS NO CONSTITUTIONAL

DUTY TO INSTRUCT THE JURY ON A SPECIFIC

STATUTORY MITIGATING CIRCUMSTANCE (THAT

THE DEFENDANT HAS NO SIGNIFICANT HISTORY OF

CRIMINAL ACTIVITY) WHEN THE CRIMINAL

DEFENDANT PRESENTS NO AFFIRMATIVE EVIDENCE

DURING THE GUILT PHASE OR THE PUNISHMENT

PHASE OF THE CRIMINAL TRIAL (THEREBY LEAVING

A "BLANK SLATE" BEFORE THE JURY) TO SUPPORT

THE INSTRUCTION AND WHEN THE PENALTY PHASE

INSTRUCTIONS AS A WHOLE ALLOW THE JURY TO

CONSIDER AND GIVE EFFECT TO ANY MITIGATING

CIRCUMSTANCE.

A St. Louis City, Missouri jury convicted respondent

Lashley of capital murder. Respondent was then denied relief

by the Supreme Court of Missouri on direct appeal, the Circuit

Court of the City of St. Louis in a post-conviction proceeding,

the Missouri Court of Appeals for the Eastern District on post-

conviction appeal, and the United States District Court in a

federal habeas corpus a-ion. On the appeal from the district

court's decision, a three-judge panel of the United States Court

of Appeals for the Eighth Circuit -- in a two-to-one vote --

overturned the sentence on the basis of a perceived Eighth

Amendment violation during the penalty phase of the criminal

proceeding.

The Court of Appeals ruled that it was an error of

constitutional dimension for the Missouri trial court to have

refused to give a mitigating-circumstance instruction requested

by respondent. The requested instruction would have told the

jury they could consider as a mitigating factor that the

defendant “has no significant history of prior criminal activity.”

§565.012.3(1), Missouri Revised Statutes (Supp. 1982). Lashley

8

vy. Armontrout, 957 F.2d 1495, 1501 (8th Cir. 1992). Two judges

of the panel held that Eighth Amendment principles, as defined

in Lockett v. Ohio, 438 U.S. 586, 604 (1978), "obligated the

Missouri trial court to give the requested instruction, if it was

warranted by the evidence.” Lashley, 957 F.2d at 1501. The two-

judge majority went on to hold that under the facts of

respondent's case, the evidence warranted the instruction. /d.,

at 1501-1502.

The decision of the two-judge majority conflicts with this

Court’s Eighth Amendment jurisprudence, overlooks Missouri

law governing the procedures applied in capital cases, and

creates a direct conflict among federal Circuit Courts of

Appeal. These serious errors by the Court of Appeals provide

sufficient reasons for this Court to exercise its power of

discretionary review and to grant a writ of certioran to the

United States Court of Appeals for the Eighth Circuit. Supreme

Court Rule 10.1(a), 10.1(c). The analysis of the Court of

Appeals in this case makes it clear that further guidance is

needed from this Court as to the applicability of the Eighth

Amendment to questions relating to state procedural rules

concerning the jury’s consideration of potentially mitigating

evidence.

A. j tes

through the Fourteenth Amendment) does not require

provides support for the instruction with competent

evidence

In its ruling, the Cqurt of Appeals has inappropriately

blended Eighth Amendment concepts with Missouri procedural

rules. The panel held:

Bin

Lockett makes it clear that the defendant is not

required to meet any particular burden of proving a

mitigating factor to any specific evidentiary level before

y

the sentencer is permitted to consider it. The evidence

before the jury in this case presented a blank slate. As

far as the jury was concerned, Lashley had no significant

history of prior criminal activity, and, therefore, he was

entitled to have the jury consider that fact as a

mitigating circumstance. The trial judge's failure to give

the requested instruction under these circumstances

violated the defendant’s Eighth Amendment rights as

expressed in Lockett.

Lashley, 957 F.2d at 1501. To be sure, in Lockett this Court held:

the Eighth and Fourteenth Amendments require that

the sentencer, in all but the rarest kind of capital case,

not be precluded from considering, as a mitigating

factor, any aspect of a defendant's character or record

and any of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than

death.

Lockett v. Ohio, 438 U.S. at 604 (emphasis added, footnote

omitted). Superintendent Delo does not dispute that holding.

But Lockett has not been the last word on mitigating

circumstances; it does not even address the separate question of

jury instructions. The court of appeal’s failure even to recognize

this Court’s subsequent, more applicable, decisions reflects a

possible methodological flaw in the opinion mandating review

by this Court.

Contrary to the court of appeals’ opinion, Lockett does

not mandate instructing on a mitigating factor that has not been

supported by evidence presented by the defendant. This Court

has determined that the instructions must allow the sentencer

to consider and give effect to any mitigating “evidence”

presented by the defendant. See Penry v. Lynaugh, 492 U.S. 302,

318-319 (1989). Apparently this inference is not so clear as to

10

be understood by the Eighth Circuit in this case.’

Superintendent Delo understands Penry as extending only to its

facts -- a situation in which the defendant has presented

"evidence" to support a mitigating factor.

This Court should now, therefore, specifically address

the question of whether the jury must be given an instruction on

Statutory mitigating evidence when the instruction is not

supported with affirmative evidence having been presented

during the criminal trial or sentencing proceeding.’ This issue

is One of importance throughout the country as several states

use Statutes and instruction rulings similar to the ones at issue

trom Missouri. Supreme Court Rule 10.1(c).

The Court has expressly held that "Lockett does not hold

that the State has no role in structuring or giving shape to the

jury's consideration of these mitigating factors." Franklin v.

Lynaugh, 487 U.S. 164, 181 (1988) (plurality opinion). "There is

no .. . constitutional requirement of unfettered sentencing

discretion in the jury and states are free to structure and shape

consideration of mitigating evidence ‘in an effort to achieve a

more rational and equitable administration of the death

penalty.” Walton v. Arizona, 110 S.Ct. 3047, 3056 (1990),

quoting, Boyde v. California, 110 S.Ct. 1190, 1196 (1990). The

Court has also noted that "the Constitution does not require a

State to adopt specific standards for instructing the jury in its

* Recently certiorari review was granted in Graham v. Collins, 950

F.2d 1009 (Sth Cir.), cert. granted, 112 S.Ct. 2937 (1992). This action

indicates the Penry decision is unclear to the circuit courts of appeal.

> The Court has recognized that it is not constitutionally

impermissible to require a defendant to bear the burden of non-

persuasion so long as the state is not relieved of proving any element

of the offense or the existence of necessary aggravating circumstances.

Walton v. Arizona, 110 S.Ct. 3047, 3055 (1990). Here, respondent did

not meet the burden of Missouri law which required the introduction

of some evidence to support his requested mitigating circumstance.

1]

consideration of aggravating and mitigating circumstances.” Zant

v. Stephens, 462 U.S. 862, 890 (1983); see also id., at 875, n. 13.

As Judge Fagg noted in his dissenting opinion, ". . . the

court mistakenly concludes Lockett obligated the state trial judge

to give Lashiey’s requested mitigating circumstance instruction

even though the record did not contain a shred of evidence to

support it.” Lashley, 957 F.2d at 1503 (Fagg, J., dissenting).

Judge Fagg also correctly discussed the interplay between

Missouri's procedural rules and the Eighth Amendment dictates

discussed in Lockett, supra, Eddings v. Oklahoma, 455 U.S. 104

(1982); and Penry v. Lynaugh, 492 U.S. 302 (1989).

The charge to the jury in respondent Lashley’s case did

allow the jurors to consider and give effect to any evidence that

might be considered mitigating. Missouri Approved Instruction -

Criminal, Second Edition (MAI-CR 2d) 15.44 and 15.46 (See

App. A-102 - A-105, A-106). In addition to specifically listing

all statutory mitigating circumstances that are supported with

some evidence, Missouri procedure requires that the jury be

instructed that they can consider "any circumstances which you

find from the evidence in extenuation or mitigation of

punishment.” MAI-CR 2d 15.44 and Note on Use 5 (App. A-

103, A-105).*

It has been recognized that sentencing jurisdictions may

require that mitigating circumstance instructions be supported

by some evidence. The dissent states the rule, correctly, as being

that "[d]ue process requires that state trial courts give mitigating

circumstance instructions only when the evidence warrants those

* If, after the jury has considered and given effect to any evidence

in extenuation or mitigation of punishment, the aggravating

circumstances are found to outweigh all mitigation factors, the jury is

not compelled to return a sentence of death. The jury is provided with

a “life option” ins-ruction under Missouri procedure. MAI-CR 2d

15.46 (App. A-106).

12

instructions.” Lashley, 957 F.2d at 1502. In support of this rule

the reader is referred to Hopper v. Evans, 456 U.S. 605, 611

(1982). Id. In Hopper, this Court addressed the analogous issue

of a lesser-included-offense instruction, and held (in pertinent

part) that "due process requires that a lesser included offense

instruction be given only when the evidence warrants such an

instruction" (emphasis in original). What unites the rule cited

from Hopper and the point Judge Fagg made in the instant case

is that the giving of jury instructions--even in a capital case--is

to be decided according to the facts of the case and the law of

the sentencing jurisdiction.’

Assuming that the record before the jury did present a

"blank slate" relating to Lashley’s prior criminal history, the

Eighth Amendment question becomes whether "no" evidence

should be considered as a mitigating factor (thereby placing the

burden on the state to disprove its existence) or whether the

defendant should have an affirmative burden, as state law

provides, to present something to support the instruction. With

this case the Court can fashion a specific rule to be applied in

federal review of state-court capital punishment convictions and

sentences.

Under Missouri procedure, an instruction may be given

only if it is supported by the evidence. State v. Battle, 661

S.W.2d 487, 492 (Mo. banc 1983), cert. denied, 466 U.S. 993

(1984); State v. Daugherty, 631 S.W.2d 637, 639 (Mo. 1982). In

fact, the Notes on Use to the Missouri instruction on this issue

(MAI-CR 2d 15.44) (App. A-102 - A-105) specifically

authorizes submission of the instruction only "if there is

* It is evident that confusion exists as to whether the question

before the Court of Appeals was one based on due process of the

Fourteenth Amendment or one based upon Fighth Amendment

principles. The confusion becomes even more evident when review is

undertaken for harmless error. See infra Argument II. This case

provides an excellent opportunity for this Court to clarify the law.

13

evidence supporting” statutory mitigating circumstances or any

mitigating circumstance or circumstances "authorized by law.”

See MAI-CR 2d 15.44, Notes on Use 3, 4 (App. A-103 - A-104).

In deciding respondent's issue on direct appeal, the Missouri

Supreme Court found that there was "no evidence to support

the statutory mitigating circumstance .. ..” State v. Lashley, 667

S.W.2d 712, 715-716 (Mo. banc), cert. denied, 469 U.S. 873

(1984).

Respondent Lashley was not prohibited from presenting

any potential mitigating evidence to the jury in this case.

Instead, Lashley made a reasonable strategic decision to forego

presentation of evidence on his claimed lack of criminal history

and thereby alleviate any possible rebuttal by the prosecution

involving, as one Missouri Supreme Court judge noted, "other

felonies committed by the defendant while an adult . . ..” State

v. Lashley, 667 S.W.2d at 717 (Blackmar, J., concurring in part

and dissenting in part). The choice made by respondent,

however, does not violate the precepts of Lockett v. Ohio, 438

U.S. at 604; see also Eddings v. Oklahoma, 455 U.S. at 112;

Penry v. Lynaugh, supra.

As the dissent correctly points out in discussing the issue

here, this Court has held "the constitution is not violated when

a state requires capital defendants to bear [the risk of

nonpersuasion as to the existence of mitigating circumstances in

capital cases].” Lashley, 957 F.2d at 1503 (Fagg, J., dissenting

opinion), citing, Walton v. Arizona, 110 S.Ct. 3047, 3055 (1990)

(plurality); see also id., 110 S.Ct. at 3066-3068 (Scalia, J.,

concurring).

Under this Court’s previous rulings on Eighth

® The majority of the Missouri Supreme Court also recognized

that while respondent was "in custody for the present offense he told

officers he had committed several felonies after attaining adult status.”

State v. Lashley, 667 S.W.2d at 716.

14

Amendment issues, the majority in respondent's appeal

proceeding has missed the mark. A writ of certioran should

issue to define application of the Eighth Amendment to jury

instruction questions dealing with mitigation evidence.

B. Because the Eighth Amendment contains no

requirement concerning procedures for submitting

instructions to the jury, this case should have been

decided primarily on state-law grounds.

Neither the Eighth Amendment nor any other source of

federal law mandates the holding reached by the United States

Court of Appeals. It is axiomatic that "federal habeas corpus

relief does not lie for errors of state law.” Estelle v. McGuire, 112

S.Ct. 475, 480 (1991), quoting, Lewis v. Jeffers, 110 S.Ct. 3092,

3102 (1990).

On surprisingly similar facts, the United States Court of

Appeals for the Fourth Circuit has determined that the failure

of a state trial court "to tell the jury that it could consider the

defendant’s clean criminal record as a mitigating factor .. .”

would at most be ".. . an error of state law which is not

cognizable by a federal court." Hutchins v. Garrison, 724 F.2d

1425, 1436-1437 (4th Cir. 1983), cert. denied, stay denied, 464

U.S. 1065 (1984); see also Briley v. Bass, 750 F.2d 1238, 1244

(4th Cir. 1984), cert. denied, 470 U.S. 1088 (1985); Jones v.

Murray, 947 F.2d 1106, 1119-1120 and n. 11 (4th Cir. 1991),

cent. denied, 112 S.Ct. 1591 (1992).

Failing to give deference to the reasonable, good-faith

decision of the Missouri Supreme Court in considering this

allegation, the Court of Appeals has incorrectly decided this

issue. Superintendent Delo is well aware of the fact this Court

has recently attempted to address the question of "whether a

federal habeas court should afford deference to state-court

determinations applying law to the specific facts of a case."

Wright v. West, 112 S.Ct. 2482, 2486 (1992). Since the Court did

not ultimately answer that question in Wright, this case would

I

wa

provide an excellent opportunity to further consider the issue.

As previously discussed, the Missouri Supreme Court

engaged in an extensive and reasonable discussion of this

allegation as it was presented on the direct appeal of

respondent’s judgment of conviction and sentence. State v.

Lashley, 667 S.W.2d at 715-716.’ Certainly, it cannot be said

that the Eighth Circuit is in any better position to decide this

issue than were the judges of the Supreme Court of Missouri.°

It has been traditionally recognized that great deference

to state court determinations will be given on issues relating to

the existence of aggravating factors. Lewis v. Jeffers, 110 S.Ct. at

3102. In Parker v. Dugger, 111 S.Ct. 731 (1991), Justice White

wrote that there should be no difference between the

consideration of "state court conclusions regarding mitigating

circumstances as opposed to those regarding aggravating

factors." Id. at 742 (White, J., dissenting). Except for the fact

that the present case concerns consideration of mitigating

evidence and not aggravating factors, the issue here is not

substantially different than the one decided in Wainwright v.

Goode, 464 U.S. 78 (1983).

’Again, as Judge Blackmar noted in his separate opinion, "[t]here

are indications in the record before us of other felonies committed by

the defendant while an adult... ." /d. at 717 (Blackmar, J., concurring

in part, dissenting in part). Lashley could not gather even one vote

from the Missouri Supreme Court to support his position that there

was evidence to support the submission of his requested instruction.

That reasonable, good-faith decision of the Supreme Court of

Missouri should have been given deference in the federal courts.

* In fact, Chief Judge Richard S. Arnold, the author of the

majority opinion in this case, has recently remarked in another capital

punishment case from the State of Missouri that "for our purposes,

"state law’ is what the Supreme Court of Missouri says it is.” Byrd v.

Delo, 942 F.2d 1226, 1232 (8th Cir.), stay denied, 112 S.Ct. 17 (1991).

16

In Goode, this Court determined that the Eleventh

Circuit had exceeded its habeas corpus authority in finding an

Eighth Amendment violation when an aggravating circumstance

claim had been fully, and arguably correctly, considered by the

Florida Supreme Court. The decision found that the issue was

cither one of state law not reviewable in a collateral proceeding,

Goode, 464 U.S. at 83-84, or was an issue of historical fact which

should have been given deference under 28 U.S.C. §2254(d).

Id., at 84-87. -

While the concept of a federal court giving deference on

a mixed issue of law and fact is quite different than deciding a

purely state law claim, it is important to recognize that the

procedures used to provide Eighth Amendment protection in

state trials are set by the individual States. As Justice Scalia

properly noted in Walton v. Arizona, the Eighth Amendment

"does not, by its terms, regulate the procedures of sentencing as

opposed to the substance of punishment.” Walton, 110 S.Ct. at

3066 (Scalia, J., concurring); see also Parker v. Dugger, 111 S.Ct.

at 743 (White, J., dissenting). When the state’s procedures do

not preclude consideration of mitigating evidence, the state

court’s determination on the Eighth Amendment question

should be entitled to deference. This Court should provide an

answer to the question left open in Wright by granting certiorari

in this case.

a The Eighth Circuit in this opinion has created a direct

conflict between the opinion in this case and the

Hutchins decision from the Fourth Circuit.

In Hutchins v. Garrison, 724 F.2d at 1436-1437, the

United States Court of Appeals for the Fourth Circuit held the

failure of a state trial court "to tell the jury that it could

consider the defendant’s clean criminal record as a mitigating

factor ..." would at most be ".. . an error of state law which

is not cognizable by a federal court." Jd. The federal habeas

corpus action in the analogous capital case from the State of

North Carolina presented nearly the same question for

17

determination decided by the Eighth Circuit here.

In Hutchins, the North Carolina Supreme Court phrased

the inmate’s issue on direct appeal as being "that the trial court

erred in failing to submit the mitigating circumstance that

defendant did not have a significant history of prior criminal

activity.” State v. Hutchins, 303 N.C. 321, 356, 279 S.E.2d 788,

809 (1981). Undeniably, the question in Hutchins presents

substantially the same issue for decision as contronted the

Missouri Supreme Court in 1984.”

The North Carolina Supreme Court found that "[s]ince

defendant did not go forward with evidence in this regard, nor

was there any evidence introduced by the state on this point,

the trial court was not obligated to instruct the jury on this

mitigating circumstance on its own motion.” State v. Hutchins,

303 N.C. at 356, 279 S.E.2d at 809. The ruling trom North

Carolina is certainly in line with the decision by the Missouri

Supreme Court.

Defendant’s position is refuted by the italized [sic]

language contained in MAI-CR 2d 15.44 which

specifically states statutory mitigating circumstances are

to be supported by the evidence. ... There being no

evidence to support the statutory mitigating

circumstance, the trial court correctly refused

defendant’s proffered instruction.

State v. Lashley, 667 S.W.2d at 715-716.

® In the present case, the Missouri Supreme Court wrote,

"|d]efendant contends the court committed reversible error in refusing

to give his tendered instruction on mitigating circumstances which

included the mitigating circumstance of defendant having no

significant history of prior criminal activities.” State v. Lashley, 667

S.W.2d at 715.

18

It would only make sense that when the highest courts

of two states decide almost exactly the same issue in almost

exactly the same way, the federal courts reviewing those issues

would come to compatible results. In this instance they have

not.” If a capital defendant has a right to a mitigation

instruction in the absence of even a scintilla of evidence to

support it, this windfall should be because this Court has found

the Constitution of the United States requires it, not on account

of the fortuity of committing his crime in the Eighth Circuit.

Missouri and North Carolina are not unique in-their

rule requiring a burden to be borne by the criminal defendant

betore mitigating evidence will be considered. See State v.

Guynan, 100 N.M. 756, 764, 676 P.2d 1321, 1329 (1984), cert.

denied, 467 U.S. 1256 (1984); People v. Cornett, 33 Cal.2d 33,

198 P.2d 877 (1945). See generally Ariz.Rev.Stat.Ann. § 13-

703(C) (1991) ("[t}he burden of establishing the existence of the

[mitigating] circumstances is on the defendant"); Cal. Penal

Code §1105(a) (West Cum.Supp. 1992); Conn.Gen.Stat. § S3a-

46a(c); Nev.Rev.Stat. §175.554.1 (1991); N.C.Gen.Stat. §15A-

2000(b) (Michie 1988); 42 Pa.Cons.Stat.Ann. §9711(c)(1)(ii)

(Cum.Supp. 1991); S.C.Code Ann. §16-3-20(C) (Law. Co-op.

Cum. Supp. 1991); Tenn.Code Ann. §39-13-204(e) (1991).

This type of inconsistency cannot stand. Litigants in the

States under the Eighth Circuit’s jurisdiction now have a federal

law hurdle to leap that does not stand in the way of states in

the Fourth Circuit -- or, to Superintendent Delo’s knowledge,

in any other circuit.

'’ The Fourth Circuit found the issue to be one of state law.

Hutchins v. Garrison, 724 ¥.2d at 1437. That result comports with this

Court's recent decision in Estelle v. McGuire, 112 S.Ct. at 481-484. See

Wainwright v. Goode, 464 U.S. at 382{1]. The Eighth Circuit found,

though, that the issue was one of constitutional concern and, in fact,

violative of the Eighth Amendment. Lashley v. Armontrout, 957 F.2d

at 1501-1502.

19

The decision of the Fourth Circuit in Hutchins makes it

clear this issue is one of state law and not one subject to Eighth

Amendment attacks. See also Wainwright v. Goode, 464 US. at

83-87; Parker v. Dugger, 111 S.Ct. at 741-743 (White, J.,

dissenting). The conflict between the opinion in this case and

the Fourth Circuit decision in Hutchins v. Garrison, 724 F.2d at

1436-1437, needs to be resolved by this Court. Supreme Court

Rule 10.1(a).

Finally, this Court should grant certiorari review in this

case to determine whether the decision of the Eighth Circuit "...

breaks new ground or imposes a new obligation on the States

or the Federal Government.” Teague v. Lane, 489 U.S. 288, 301

(1989). Assuming, arguendo, the Eighth Amendment does

require what the court of appeals claims it does, the

presumption is that the rule of constitutional law would not

apply to Lashley’s case.

Under nearly the same facts, the Fourth Circuit has held

that the issue in this case is primarily one of state law. Hutchins

v. Garrison, 724 F.2d at 1436-1437. The conflicting -- and

diametrically opposed -- opinion in the case at bar must be said

to create a new rule of constitutional law under Teague. Of

course, aS a new rule of law, it should not be applied to

respondent's case which is on collateral appeal unless it fits

within one of the very narrow exceptions from Teague. Wright v.

West, 112 S.Ct. at 2500-2503 (Souter, J., concurring in

judgment).

The result in this case is not the same as that reached

by this Court in Penry v. Lynaugh, 492 U.S. 302 (1989). In

Penry, the Court was confronted with a situation wherein the

criminal defendant had presented evidence to support the giving

of the instructions refused by the trial court. Penry, 492 U.S. at

318-319. To extend Penry (or the Court's earlicr Eighth

Amendment cases such as Lockett and Eddings) to include the

facts of this case may be right (as two judges of the Eighth

Circuit said) or wrong (as the dissenting judge and

20

Superintendent Delo say), but it is certainly "new." Unless the

prisoner can show that his case falls within one of the two

exceptions from Teague, the Eighth Circuit panel’s decision

violates this Court’s directions in Teague and its progeny.

This Teague issue should have prevented the court of

appeals from addressing any constitutional issue in this case.

This Court should accept discretionary review of this case to

correct the Teague violation."

Under the above arguments, it is clear that guidance

needs to be given to the lower courts concerning application of

Eighth Amendment principles to state court determinations and

the interplay between the state’s procedural rules and the

federal constitutional requirements. This case provides the

opportunity for such guidance.

'' Superintendent Delo is cognizant of the fact respondent may

reply that the Teague issue was not briefed in the district court or in

the appellee’s brief before the Eighth Circuit. The district court

decision was rendered before this Court’s opinion in Teague was

handed down. After having prevailed at that level, petitioner felt the

district court’s decision was not only correct but properly based on

prevailing theories of constitutional law not requiring a Teague defense

to be needed in the court of appeals. Teague was raised in the petition

for rehearing (App. A-55 - A-56, n. 1).

ol

II.

A STATE TRIAL JUDGE’S OMISSION TO INSTRUCT

THE JURY ON A MITIGATING CIRCUMSTANCE CAN

BE CONSIDERED HARMLESS ERROR AND, IN THIS

CASE, IS HARMLESS UNDER ANY STANDARD OF

REVIEW.

Even assuming, arguendo, that the Eighth Circuit

reached the proper decision under this Court’s Eighth

Amendment jurisprudence, the court’s decision was incomplete.

Assuming that the state trial court committed a constitutional

violation by refusing to give the unsupported mitigating

circumstance instruction concerning respondent Lashley’s

visionary lack of a significant history of prior criminal conduct,

the Court should use this case as an opportunity to decide

whether collateral relief will lie in the absence of consideration

for harmless error of the assumed violation, and what standard

such harmless error review should be undertaken.”

A. Eighth Amendment errors relating to the submission of

mitigating-circumstance instructions should be subject

This Court "has recognized that most constitutional

errors can be harmless.” Arizona v. Fulminante, 111 S.Ct. 1246,

1263 (1991). At least in the area of applying that rule to cases

involving consideration of mitigation evidence by a jury,

however, it is not clear what standard of review -- if any --

might be appropriate. In two of the first decisions on mitigation

evidence after Woodson v. North Carolina, 428 U.S. 280 (1976),

the Court did not reach the issue of what the proper level of

'? The Court has recently agreed to review a similar question from

a Seventh Circuit case. Brecht v. Abrahamson, 944 F.2d 1363 (7th Cir.

1991), cert. granted, 112 S.Ct. 2937 (1992). The question presented in

that case deals with applying harmless error to a prophylactic rule.

”

=

scrutiny would be for deciding whether an error was harmless.

See Lockett v. Ohio supra, Eddings v. Oklahoma, supra. Later, in

Skipper v. South Carolina, 476 US. 2 (1986), the Court

interpreted the State’s argument that the mitigating evidence

was Cumulative to mean that the State was seeking application

of some type of harmless error analysis. Skipper, 476 U.S. at 9.

The Court ruled that the exclusion of the mitigating evidence

was “sufficiently prejudicial to constitute reversible error”

because it was “reasonably likely that the exclusion of evidence

.. May have affected the jury’s decision.” /d. It is unclear,

however, whether the contrary is truc, ce., that if the exclusion

of mitigating evidence is not reasonably likely to have effected

the jury’s decision then the sentence is constitutionally

permissible. The Court implicitly acknowledges this possible

contusion as to the proper standard by concluding, "|t|hus,

under any standard, the exclusion of the evidence was

sutficiently prejudicial to constitute reversible error.” /d. at 1673

(emphasis added). As a result, the Skipper holding provides

littke guidance for cases similar to the one before the Court

calling for a standard by which to analyze the impact of the

failure to give a mitigating circumstance instruction.

The Court's opinion in Hitchcock v. Dugger, 481 U.S. 391

(1987), confirms Superintendent Delo’s understanding that an

“absolute reversal” rule should not apply in the instant case.

The case, though, did not spell out the specific standard to

apply. Like Skipper, that case involved the unconstitutional

exclusion of mitigating evidence (rather than, as here, the

refusal of an instruction which was unsupported by affirmative

evidence) during the penalty phase. A unanimous Court

intimated that such an error may be saved, stating that

"[rjespondent has made no attempt to argue that this error was

harmless, or that it had no effect on the jury or the sentencing

'? Also implicit in the Court's language in Skipper is the fact that

under a different factual situation some type of harmlessness review

would be possible.

23

judge.” Jd. at 399. In stating these exceptions as alternatives,

the Court seems to acknowledge that reversal on the basis of

such a constitutional error concerning mitigating circumstances

may be avoided by cither the “harmless error” doctrine’ or

what may best be characterized as a “due process” or "no

prejudice” standard.”

At least one of the United States Courts of Appeals has

interpreted the Court’s opinion in Hitchcock to require the

application of a harmless beyond a rcasonable doubt analysis to

unconstitutional exclusions of mitigating evidence. See Demps v.

Dugger, 874 F.2d 1385, 1389-1390 (11th Cir. 1989), cert. denied,

110 S.Ct. 1834 (1990), citing, Chapman v. California, 386 U.S. 18

(1967). In Demps, the Eleventh Circuit set forth the standard as

follows:

To be harmless in the Hitchcock context, the court must

determine beyond a reasonable doubt that the proposed

mitigating evidence regarding the defendant's character

would not have influenced the jury to recommend a life

sentence.

Demps v. Dugger, 874 F.2d at 1390. Although this Court has not

given such a succinct definition of any harmless error standard

for the situation present in this case, the Demps standard can be

reconciled with the various dicta from Supreme Court opinions.

The Court should take this opportunity to provide definitive

guidance on what standard is to be applied.

'* See generally Chapman v. California, 386 U.S. 18 (1967).

'* See Hitchcock v. Dugger, 481 U.S. at 399; see e.g. Hamilton v. Nix,

809 F.2d 463, 470 (8th Cir.)(en banc), cert. denied, 483 U.S. 1023

(1987). In Hopper v. Evans, 456 U.S. 605 (1982), this Court cited

Chapman and applied what might be best characterized as a “no

prejudice” test. See Rose v. Clark, 478 U.S. 570, 577. The “no

prejudice” analysis is similar to the review undertaken in the Eighth

Circuit for due process claims. Hamilton v. Nix, supra.

24

It is recognized that application of harmless error

analysis to trial error is necessary to "preserve the ‘principle that

the central purpose of a criminal trial is to decide the tactual

questions of the defendant's guilt or innocence, and promotes

public respect for the criminal process by focusing on the

underlying fairness of the trial rather than on the virtually

inevitable presence of immaterial error.” Arizona v. Fulminante,

111 S.Ct. at 1264; quoting Delaware v. Van Arsdall, 475 U.S. 673,

681 (1986); see also Rose v. Clark, 478 U.S. 570, 578-579 (1986).

Furthermore, this Court has held that harmless error

analysis is appropriate on habeas corpus review of Eighth

Amendment challenges to penalty phase instructions dealing

with aggravating factors, Clemmons v. Mississippi, |10 S.Ct. 1441,

1451 (1990);"° Sochor v. Florida, 112 S.Ct. 2114 (1992).

As Justice White stated in Parker v. Dugger, 111 S.Ct.

731, "I see no reason to differentiate between state court

conclusions regarding mitigating circumstances as opposed to

aggravating factors.” /d. at 742 (White, J., dissenting). Similarly,

there is no reason to apply a harmless error test to aggravating

factors while requiring the harshness of an "automatic reversal"

standard for mitigation questions. The importance of this issue

needs to be addressed by this Court. Rule 10.1(c). A writ of

certioran should issue.

B. Applying a harmless beyond a _ reasonable doubt

standard to the facts in this case leaves no doubt that

respondent’s sentence was appropriate.

'° In Clemmons, the Court went so far as to state "[a]lthough the

court applied the proper ‘beyond a reasonable doubt’ standard, see

Chapman v. California, 386 U.S. 18 (1967) . . ..” Clemmons vy.

Mississippi, 110 S.Ct. at 1451. In Fulminante, the Court expressly

recognized that Chapman had been applied in Clemmons to the issue

of “unconstitutionally overbroad jury instructions at the sentencing

stage of a capital case.” Arizona v. Fulminante, 111 S.Ct. at 1263.

25

Application of the harmless error rule to the case before

the Court would leave the original jury verdict intact, because

the mitigating circumstance instruction, even if given, would

carry such little weight that it is certain beyond a reasonable

doubt that the sentencer would have imposed the death

sentence. Apart from the single missing factor in the mitigation

instruction, the jury was fully instructed that they could consider

any and all evidence in mitigation before arriving at the final

punishment decision (App. A-102 - A-105). Cf. Rose v. Clark,

478 U.S. at 579. The jury was also instructed they could return

a sentence of life imprisonment even if they believed the

aggravating factors were stronger in this case than the

mitigating circumstances (App. A-106).

The assumed constitutional error in this case is harmless

if Superintendent Delo can show beyond a reasonable doubt

that submission of the requested instruction would not have

influenced the jury to return a life sentence. See Demps v.

Dugger, 874 F.2d at 1390; cf. Hitchcock v. Dugger, 481 U.S. at

398-399. Because the harmless error analysis deals directly with

the process by which the death penalty is imposed, one must

apply the harmless error rule with an understanding of the

particular sentencing jurisdiction’s procedures -- here, the

procedures of the State of Missouri.

Missouri's capital sentencing scheme first requires the

sentencer to decide whether one of the enumerated statutory

aggravating circumstances is present. If one of those factors is

present beyond a reasonable doubt, then the criminal defendant

becomes “eligible""’ for the death penalty. State v. Stokes, 638

S.W.2d 715, 724 (Mo. banc 1982), cert. denied, 460 U.S. 1017

(1983). The jury then determines whether the aggravating

circumstances outweigh the mitigating factors and in this

determination the jury is allowed to consider all possible

'’ See Sawyer v. Whitley, 112 S.Ct. 2514, 2522-2523 and n. 15

(1992).

26

factors, not just those included in the jury instructions.

In Lashley’s case, the jury found the existence, beyond

a reasonable doubt, of one statutory aggravating circumstance:

the jury found the murder was committed for pecuniary gain.

State v. Lashley, 667 S.W.2d at 714-715. Respondent was eligible

for the death penalty upon that finding. The two-step process

employed in Missouri allows a criminal defendant both to

contest the existence of aggravating circumstances, and then --

if at least one is found -- to argue that the aggravating

circumstance is outweighed by relevant mitigating factors.

The next question, then, was whether the jury’s

consideration of all evidence in aggravation and all evidence in

mitigation would result in a finding that mitigating evidence

outweighed aggravating evidence so as to require a life sentence.

See MAI-CR 2d 15.44 (App. A-102 - A-105). Finally, even if the

jury determined that respondent did not have sufficient

evidence in mitigation to outweigh the viciousness of his crime,

they were still not compelled to fix the punishment at death.

MAI-CR 2d 15.46 (App. A-106).

In the penalty phase procedure as defined by Missouri

law, it is clear the jury had ample opportunity to return a

sentence of life imprisonment in this case. Respondent's

argument was not that additional evidence in mitigation could

have been presented to the jury; the argument was only that an

additional factor should have been enumerated in the middle of

an instruction that was given to the jury for consideration.

The court of appeals based its decision on a premise the

record presented an evidentiary “blank slate." Lashley vy.

Armontrout, 957 F.2d at 1501. The facts comprising this blank

Slate are not nearly as compelling for mitigation as the majority

would lead one to believe. Respondent Lashley had only been

an adult for thirty (30) days when he killed his cousin and

guardian, Ms. Tracy. His lack of a significant prior criminal

history only extended for one month as only offenses committed

27

as an adult are germane to this mitigating circumstance.

More importantly, the Supreme Court of Missouri noted

that there was evidence the "[wjhile in custody for the present

offense he told officers he had committed several felonies after

attaining adult status.” State v. Lashley, 667 S.W.2d at 716. Even

if this evidence was not before the jury in the guilt phase of the

trial, see State v. Lashley, 667 S.W.2d at 717 (Blackmar,

dissenting), the record could easily have been made to include

this information if the prosecution felt Lashley would otherwise

have the benefit of an unsupported instruction to the contrary.

Not only would such evidence effectively refute respondent's

assertion that he should be granted mitigation of his sentence

because of his alleged lack of criminal history, it would

strengthen the jury’s original determination that respondent be

given a sentence of death.

In any event, in the instant case the absence of prior

criminal convictions does not mean that the prisoner was free

from a "significant history of prior criminal activity." The

distinction between juvenile adjudications and criminal

convictions relates to the legal consequences of an act, not to

the essence of the act. The rule of Missouri law forbidding the

use of juvenile adjudications as evidence in Missouri trial courts

does not make the activity a person was found to have

committed any less odious. That rule of law stems from a policy

to promote rehabilitation of the offender at the cost of denying

triers of fact relevant evidence in later cases. In the instant case,

it would have been contrary to fact for the trial judge to have

instructed the jury that the prisoner had "no significant history

of prior criminal activity.” Respondent Lashley may have had

the right to have the juvenile adjudications excluded from the

evidence in aggravation, but he did not have the right to a

windfall instruction which was disaffirmed by his behavior. Far

from having created unfair prejudice for the prisoner, the trial

judge’s refusal of a specific, contrary-to-fact instruction --

coupled with the less specific mitigation instructions and the

silent record -- was probably the most equitable disposition of

this matter.

As this Court has repeatedly recognized, in reviewing

jury instructions, a single incident may not be revived in

artificial isolation, but must be viewed in the context of the

overall charge. Cupp v. Naughten, 414 U.S. 141, 146-147 (1973);

Estelle v. McGuire, 112 S.Ct. at 482.

Taken as a whole, it cannot be said that there is "a

reasonable likelihood” that the jury has been deprived of

consideration of any mitigating factor. In fact, in addition to

specifically being instructed that they could consider the age of

the defendant at the time of the offense as a mitigating

circumstance, the jury was also instructed that they could

consider “any circumstances” which were found from the

evidence "in extenuation or mitigation of punishment.” MAI-CR

2d 15.44 (App. A-102 - A-105). The jury was also provided with

a specific "life-option" instruction in this case which read:

Even if you decide that a sufficient mitigating

circumstance or circumstances do not exist which

outweigh the aggravating circumstance found to exist,

you are not compelled to fix death as the punishment.

Whether that is to be your final decision rests with you.

MAI-CR 2d 15.46 (App. A-106).

Even in the absence of a specific listing of the mitigating

circumstance in question (lack of significant history of prior

criminal activity), the full charge submitted to the jury by the

circuit court comports with constitutional requirements. See

Blystone v. Pennsylvania, 110 S.Ct. 1078, 1084 (1990); Jones v.

Murray, 947 F.2d 1106, 1119-1120 (9th Cir. 1991) cert. denied,

112 S.Ct. 1591 (1992); cf. Peek v. Kemp, 784 F.2d 1479, 1491-

1493 (11th Cir. 1986) (en banc), cert. denied, 479 U.S. 939

(1986). The jury in this case was given the opportunity to

consider and give effect to any factor they felt would have

mitigated punishment in this case.

29

If this evidentiary "blank slate” -- as the court of appeals

terms it -- is so significant that it is evidence for the purpose of

Satisfying the majority’s Lockett analysis, then it cannot have

been lost on the jury. The trial judge instructed the jury that it

could consider in mitigation "any circumstances" found from the

evidence. For the very reason the court of appeals relies on in

striking down the judgments of the jury, the trial judge, the

Missouri Supreme Court on direct appeal and the federal

district court--Le., the substantive salience of the absence of

serious prior criminal activity--the jury may not blithely be

presumed to have ignored it. Yet, that is the effect of the

federal appellate court’s holding on this issue: from the fact that

no evidence of serious prior criminal activity was presented to

the jury, and the law (undisputed by any participant in these

proceedings) that the jury could consider this circumstance, the

Eighth Circuit has leaped to the result that the trial court had

to instruct on this specific mitigating circumstance -- in addition

to giving the more inclusive mitigating-circumstance instruction

and the life-option instruction. What the present case

establishes as the law is not that the jury may consider the

absence of serious prior criminal activity, but that it must be

specially instructed to do so--even when defense counsel does

not proffer, through reasonable trial strategy, such evidence to

the jury.

The sentence given to respondent by the St. Louis City

jury in 1982 would not have been different even if the jury had

been given one additional mitigating circumstance which was

unsupported by any evidence respondent presented during the

guilt or punishment phases of the criminal trial.

30

CONCLUSION

Petitioner respectfully requests this Court to issue a writ

of certiorari to the United States Court of Appeals tor the

Eighth Circuit.

Respectfully Submitted,

WILLIAM L. WEBSTER

Attorney General

RONALD L. JURGESON

Assistant Attorney General

Counsel of Record

Penntower Office Center

3100 Broadway, Suite 609

Kansas City, Missouri 64111

(816) 531-4207

(816) 531-0231 FAX

Attorneys for Petitioner.