Appendix — Delo v. Lashley

YY 4 -A6bY ( :

No. ‘

his

In The

Supreme Court of the United States

October Term, 1992

PAUL DELO, SUPERINTENDENT

Potosi Correctional Center,

‘Petitioner,

V.

FREDERICK LASHLEY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

APPENDIX

WILLIAM L. WEBSTER

Attorney General

State of Missoun

RONALD L. JURGESON

Assistant Attorney General

Counsel ot Record

Penntower Office Center

3100 Broadway, Suite 609

Kansas City, Missoun 64111

(816) $31-4207

Attorneys for Petitioner

APPENDIX

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

United States Court of Appeals for the Eighth

a a al cae a og

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

petition for rehearing of rehearing en banc ... A-22

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

United States District Court for the Eastern

EE

APPENDIX 4: The December 13, 1989 Order of the

United States District Court for the Eastern

TTA

APPENDIX 5: The December 13, 1989, Memorandum

of the United States District Court for the

Eastern District of Missouri............... A-25

APPENDIX 6: The January 3, 1989 Order of the

United States District Court for the Eastern

PFO TS OP a PCT TTT eT 223

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

States District Court for the Eastern District of

ge a's wae

APPENDIX 8: Portions of the March 29, 1988 Report

and Recommendation of United States

THE cae hg 66 a dia a /he bald 9 Xia 0 2

APPENDIX 9: The March 20, 1984 opinion of the

Supreme Court of Missouri in respondent's

Se ce ee

APPENDIX 10: Petitioner’s Petition for Rehearing or

Rehearing en banc filed in the United States

Court of Appeals for the Eighth Circuit......

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

APPENDIX 12: Missouri Revised Statute, Section

SGS.012, 1962 SUpBIOMOME 2... ese ccssccces

APPENDIX 13: Portion of the transcript from the

Original criminal trial (including punishment

phase instruction conference and punishment

phase closing argument) .................

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

ll

A-|

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 90-1036EM

Frederick Lashley, *

a

Appellant, .

. On Appeal from the United

v. ° States District Court

° for the Eastern District

William Armontrout, * of Missouri

Warden, Missouri °

Department of a

Corrections, °

e

Appellee. °

Submitted: October 8, 1990

Filed: March 4, 1992

Before ARNOLD* and FAGG, Circuit Judges, and WA-

TERS,” District Judge.

* The Hon. Richard S. Arnold became Chief Jude of the United

States Court of Appeals for the Eighth Circuit on January 7,

1992.

** The Hon. H. Franklin Waters, Chief Judge, United States

District Court for the Western District of Arkansas, sitting by

designation.

ARNOLD, Circuit Judge.*”

Fredenck Lashley, a Missouri prisoner convicted of

capital murder, appeals the District Court's denial of his 28

U.S.C. § 2254 application for a writ of habeas corpus. We

affirm the conviction, but reverse and remand for resentencing.

I.

Lashley *‘brutally took the life of [a] physically infirm

woman, who for many years had cared for and reared him, in

order torobher.’’ State v. Lashley, 667 S.W.2d 712, 716(Mo.),

cert. denied, 469 U.S. 873 (1984). Lashley broke into his foster

mother’s home while she was away, darkened the front room,

and lay in wait. When his foster mother returned, he struck her

over the head with a cast-iron skillet, using enough force to

break the skillet into two pieces. She fell to the floor, and a

struggle ensued. Knowing his foster mother had a soft spot in

her skull, Lashley ended the struggle by plunging a butcher

knife into this vulnerabie area. He then stole $15 from his foster

mother’s purse, took the keys to her car, and departed. Lash-

ley’s foster mother died two days later.

A state-court jury convicted Lashley of capital murder,

and he was sentenced to death. The Missouri Supreme Court

affirmed the conviction and death sentence. /d. Lashley

unsuccessfully sought state postconviction relief before bring-

ing this federal habeas action. See Lashley v. State, 721 S.W.2d

31 (Mo. App. 1986), cert. denied, 481 U.S. 1024 (1987). On

appeal from the District Court's denial of habeas relief, he raises

a number of issues, and we address them in turn.

*“" The signer of this opinion wishes to express his thanks to

Judge Fagg for significant contributions to its composition.

A-3

Lashley contends he received ineffective assistance of

counsel because his trial attorney failed adequately to investi-

gate and raise diminished capacity as a defense during the guilt

phase of his trial and as a mitigating factor during the penalty

phase. As a reviewing court we ‘‘must indulge a strong

presumption that counsel's conduct falls within the wide range

of reasonable professional assistance."’ Strickland v. Washing-

ton, 466 U.S. 668, 689 (1984). To prevail on his ineffective-

assistance-of-counsel claim, Lashley acknowledges that he

must show his trial attorney's representation was deficient, and

that the deficient performance prejudiced his defense. /d. at

687. In attempting to make this showing, Lashley does not

challenge the findings made by the Missoun Court of Appeals,

Lashley v. State, 721 S.W.2d at 32-34.

During the state postconviction hearing, Lashley’s tral

attorney testified that he considered presenting a theory of

diminished capacity during the guilt and penalty phase of the

trial based on Lashley’s claim that he was high on drugs when

he killed his foster mother. The attorney decided not to do so

after he evaluated the evidence available to support the theory

and discussed trial strategies with co-counsel, several other

attorneys, and Lashley. /d. at 32-33.

Counsel investigated petitioner's claimed ingestion of

drugs, but the results of this investigation did not substantiate

Lashley’s story. The psychiatrist who examined Lashley told

the attorney there was no evidence Lashley was high on drugs

the night of the murder. /d. at 33. Similarly, the two witnesses

"petitioner named to support his claim did not produce useful

information. /d. One witness could not be located by the

A-

attorney's investigator. The other could not pinpoint the date

she had seen Lashley intoxicated. A third witness, present when

the police arrested Lashley, testified at the postconviction

hearing that Lashley did not appear high or act abnormal unt!

after his arrest. /d. at 33-34. This left petitioner himself as the

only witness who could testify that he was under the influence

of drugs on the day of the murder. Lashley’s attorney believed

he would be a liability as a defense witness, and Lashley’s

psychiatrist was unwilling to put any stock in his uncorrobo-

rated story. /d. at 33.

A defense attorney is not ineffective for not presenting

an implausible theory of defense or mitigation. **(T}he Sixth

Amendment does not require that counsel do what is impossible

or unethical. If there is no bona fide defense . . ., counsel cannot

create one and may deserve the interests of his clients by

attempting a useless charade.’’ United States v. Cronic, 466

U.S. 648, 656 n.19 (1984) (citation omitted); see also Arist v.

Foltz, 804 F.2d 944, 946-47 (6th Cir. 1986) (citing Cronic and

holding an attorney is not required to present a baseless intoxi-

cation defense); cf. Thompson v. Jones, 870 F.2d 432, 434-35

(8th Cir. 1988) (holding attorney not ineffective for failing to

raise meritless issues on appeal).

In this case, Lashley’s attorney thoroughly investigated

the claim of diminished capacity. The attorney’s investigation,

however, turned up no support for Lashley’s assertions. This

left the attorney with nothing more than an unimpressive client,

telling an improbable and uncorroborated story, which was

effectively refuted by his own calculated behavior on the night

of the murder. Lashley’s attorney then made an informed,

strategic decision against presenting evidence that his client

was drug-impaired, and Lashley concurred with his attorney's

decision. Lashley v. State, 721 S.W.2d at 33. Given these

circumstances, the Missouri Court of Appeals held *‘there was

A-5

a reasonable basis for [the attorney's] trial strategy.’ /d. at 34.

ee -_ and conclude that the attorney acted within the bounds

of professionally competent assistance. Strick/

po rom rickland, 466 U.S. at

B.

The relevant facts pertaining to this issue are

State v. Lashley, 667 S.W.2d at 71 Pa 15. In short, tere

penalty phase of the trial, the jury returned an improperly

worded verdict imposing the death penalty. Lashley’s attorney

agreed that the form of the verdict was improper. /d. at 715

Over the objections of the attorney, the trial court informed the

Jurors that their verdict was not in the proper form and told them

to review the court’s instructions. The court then excused the

jury to deliberate further. After a short time, the jury returned

a verdict in proper form, again imposing the death penalty. The

trial court polled the jurors to ensure the verdict was unanimous.

| Lashley contends that the trial court’s refusal to accept

the Jury's initial verdict placed him in double jeopardy and

interfered with his right to a jury trial. These claims are without

menit. A tral court may ask a jury to correct its verdict without

violating the Fifth and Sixth Amendment rights Lashley raises

See United States v. Mears, 614 F.2d 1175, 1179 (8th Cir.), cert.

denied, 446 U.S. 945 (1980) (jury may correct verdict that is

improper due to inadvertent error); Brown v. Gunter, 562 F.2d

122, 124-125 (1st Cir. 1977) (defendant's Fifth and Sixth

Amendment nghts not violated by state trial court's allowing

jury to correct its verdict from not guilty to guilty). We agree

with the Missouri Supreme Court that the trial court ‘‘could not

have handled the situation in a more neutral manner.’’ State v

Lashley, 667 S.W.2d at 715. Under Missouri law, a ‘jury's

verdict is not binding until it is accepted by the court and the jury

discharged.’’ /d. The trial court simply complied with Mis-

A-6

sour law by requiring the jury to deliberate further and to return

a verdict in proper form, id., and Lashley’s constitutional nghts

were not impaired.

C.

Lashley next contends the prosecution presented insuf-

ficient evidence of premeditation, deliberation, and intent to

commit capital murder. The State responds that Lashley is

procedurally barred from raising this claim because he failed to

include the claim in his appeal to the Missouri Supreme Court.

Although the State may be correct, we nonetheless choose to

address the merits of Lashley’s claim. See Long v. Jowa, 920

F.2d 4, 6n.2 (8th Cir. 1990) (when claim lacks ment, court may

bypass procedural bar and deny relief on the menits).

Lashley does not challenge the controlling principles of

state law. In Missouri, premeditation and deliberation properly

may be inferred from the circumstances of the cnme. Turner v.

Armontrout, 845 F.2d 165, 168 (8th Cir.), cert. denied, 488 U.S.

928 (1988). Additionally, premeditation and deliberation need

not exist in the assailant’s mind for any particular period of

time. State v. Roberts, 709 S.W.2d 857, 863 (Mo.), cert. denied,

479 U.S. 946 (1986) (premeditation); State v. McDonald, 66!

S.W.2d 497, 501 (Mo. 1983), cert. denied, 471 U.S. 1009

(1985) (deliberation).

Having reviewed the record in the light most favorable

to the prosecution, we conclude that a ‘‘rational tner of fact

could have found the essential elements of [capital murder]

beyond a reasonable doubt.’’ Jackson v. Virginia, 443 U.S

307, 319 (1979). The record shows Lashley broke into his

foster mother’s home, waited in ambush for her to return, and

deliberately plunged a knife through a known soft spot in her

skull. In our view, a rational jury could infer that by lying in

wait and inflicting a selective mortal wound, Lashley did

SOOO

premeditate, deliberate, and intend to murder his foster mother.

D.

Lashicy next contends he was denied his Sixth Amend-

ment nght to a fair and impartial jury because the triz] court

violated Witherspoon v. Illinois, 391 U.S. $10 (1968), when it

excused for cause jurors who expressed an unwillingnes. to

impose the death penalty. Lashley argues that five of the jurors

did not demonstrate sufficient reluctance about the death pen-

alty to sustain the prosecution’s challenges for cause. We

disagree. The record shows that each of these jurors unequivo-

cally indicated an unwillingness or inability to consider the

death sentence in the event of a capital murder conviction. The

Supreme Court has made clear that jurors opposed to the death

penalty may be excused for cause if their opposition would

‘*"prevent or substantially impair the performance of [their]

duties... in accordance with [the] instructions and [the] oath.’’’

Wainwright v. Witt, 469 U.S. 412, 424 (1985) (quoting Adams

v. Texas, 448 U.S. 38, 45 (1980)) (footnote omitted). The trial

court properly excused these jurors for cause.

4

During the guilt phase of the trial, the prosecution intro-

duced a number of items recovered from the murder scene,

including a hammer found next to a piece of the broken skillet.

According to Lashley, the hammer was inadmissible, and the

prosecution introduced it to inflame the jury. The trai court

ruled the hammer was admissible under state law, and the

Missouri Supreme Court affirmed that decision. 667 S.W.2d at

714. Lashley contends that he was denied his due-process nght

to a fair trial by the erroneous admission of the hammer into

evidence.

‘*The admissibility of evidence is a matter of state law,

A-8

and we review admissibility rulings in a federal habeas corpus

action ‘only when the [claimed] error . . . is so prejudicial that

it amounts to a denial of due process.’’’ Kuntzelman v. Black,

774 F.2d 291, 292 (8th Cir. 1985) (citation omitted). *‘A denial

of due process occurs when the error is gross, conspicuously

prejudicial or of such import that the trial was fatally infected.’*’

Redding v. Minnesota, 881 F.2d 575, $79 (8th Cir. 1989), cert.

denied, 110 S.Ct. 1158 (1990) (citation omitted). In this case,

we agree with the district court that ‘‘[w]hether [Lashley]

struck his victim with a skillet . . . or struck her with a hammer

_. , does not at all change the character and nature of his act.’’

The hammer was introduced along with other items recovered

from the murder scene, and ‘‘[a] photograph showing the

hammer and piece of skillet had already been received in

evidence--without objection."’ State v. Lashley, 667 S.W.2d at

714. ‘‘{T]he only mention of the hammer in closing arguments

was made by defense counsel[, and] it is beyond dispute that the

butcher knife wielded by [Lashley] was the death weapon."’ /d.

With these circumstances in mind, we cannot conclude the

admission of the hammer denied Lashley a fair tral.

P.

Lashley also contends the District Court erred in dis-

missing his application for a writ of habeas corpus without

holding an evidentiary hearing. This argument has no ment.

‘‘Dismissal without a hearing is . . . proper [when] the facts are

not in dispute or [when] the dispute can be resolved on the basis

ofthe record.’’ Lindner v. Wyrick, 644 F.2d 724, 729 (8th Cir. ),

cert. denied, 454 U.S. 872 (1981). Lashley had a full eviden-

tiary hearing during his state postconviction proceeding. On the

basis of the trial record, the postconviction transcript, and the

parties’ briefs, the District Court denied habeas relief. Peti-

tioner has failed either to show how the state-court record |

~ petitioner had no significant criminal history.

A-9

deficient, or to indicate what additional information could be

produced at another evidentiary hearing that would alter the

outcome of this habeas action. The District Court properly

declined to hold an evidentiary hearing.

G.

Lashley contends he received ineffective assistance of

counsel because his trial attorney failed to introduce evidence to

support a mitigating-circumstance instruction as to no signifi-

cant history of past criminal activities. This claim is procedu-

rally barred because it was not included in the postconviction

appeal to the Missouri Court of Appeals. Petitioner contends

his postconviction counsel was ineffective in failing to preserve

the point, and that this is cause for his procedural default. We

disagree. The Supreme Court recently made clear that ineffec-

tive assistance of postconviction counsel is not cause to excuse

procedural default. Coleman v. Thompson, 111 S.Ct. 2546,

2567-68 (1991). ‘‘As [Lashley] does not argue in this {cJourt

that federal review of his claim[] is necessary to prevent a

fundamental miscarriage of justice, he is barred from bringing

(this] claim in federal habeas.’ /d. at 2568."

| The writer of this opinion (speaking for himself alone on this

point) would take a different approach to the question of tnal

counsel’s failure to introduce affirmative evidence to show that

In my view, trial

asonable effort to introduce this evidence but

was prevented from doing so by an incorrect ruling of the state

trial court. The court told counsel that if she insisted on offering

evidence that Lashley had no criminal record, it would permit

the state to counter this evidence by showing that petitioner had

committed juvenile offenses. This ruling was flatly contrary to

state law, which provides:

counsel made are

(Footnote continued)

BEST AVAILABLE COPY

Although we find no menit in any of Lashley’s other

claims, we agree with him that the Missoun tnal court violated

the Eighth Amendment by refusing to give the mitigating-

circumstance instruction Lashley requested --1.¢., “The defen-

dant has no significant history of pnor criminal activity. '* Mo

Rev. Stat. § 565.012.3(1) (Supp. 1982) (current version at Mo.

Rev. Stat. § 565.032.3(1) (Supp. 1990)).

During a conference preceding the penalty phase, the

defense attorney made a motion in limine to prevent the State

from introducing any evidence of Lashley’s juvenile record.

Missouri Revised Statutes § 211.271 (1978) prohibits the

introduction of a defendant's juvenile record for any purpose.

The statute also says that a juvenile adjudication is not a

criminal act. This Court assumes, although Lashley’s attorney

did not say so, that her basis for this motion was that statute. In

any event, the trial judge never ruled on Lashley’s motion, but

(Footnote continued) | |

1. No adjudication by the juvenile court upon

the status of achild shall be deemed a conviction

nor shall the adjudication operate to impose any

of the civil disabilities ordinarily resulting from

conviction nor shall the child be found guilty or

be deemed a criminal by reason of the adjudica-

tion.

- t ©

3. After a child is taken into custody 4.

provided in Section 211.131, all admission»

confessions, and statements by the child to ti.

juvenile officer and juvenile court personi”

and all evidence given in cases under this

(footnote conmtinuc .

appeared to agree with the State that if the defense opened the

door with evidence of Lashley’s *‘criminal history’’ (or lack

thereof), the prosecutor could walk mght through it with evi-

dence of Lashley’s juvenile record. Consequently, the defense

did not introduce any evidence of Lashley’s lack of criminal

history. The prosecution, however, also failed to introduce any

evidence of adult criminal activity by Lashley, and because of

his age at the time of the offense -- 17 years and 30 days, an adult

for purposes of criminal prosecution a mere 30 days -- it is

(footnote continued)

chapter, as well as all reports and records of the

juvenile court are not lawful or proper evidence

against the child and shall not be used for any

purpose whatsoever in any proceedings, civil or

criminal, other than proceedings under this

chapter.

Mo. Rev. Stat. § 211.271 (1978) (emphasis mine). I believe that

this ruling, in and of itself, is a separate and distinct violation of

the principle of Lockett v. Ohio, 438 U.S. 586 (1978), discussed

below in part H. of this opinion.

The other two members of this Court do not agree with

this view. They believe -- and this is therefore the holding of

this Court on the point -- that the tal court was not called upon

to rule in respect to the admissibility of defendant’s juvenile

record. Thus, the majority does not agree that the record reflects

that the trial court prevented defendant's counsel from attempt-

ing to prove that defendant had no significant criminal history

by ruling or advising her that the state would be permitted to

cross examine in respect to defendant's juvenile record if she

attempted to offer evidence in respect to his lack of cnminal

history. Therefore, this Court does not reach the merits of the

contention that the trial judge’s ruling, contrary to Missoun

law, amounted to a distinct Lockett violation.

A-12

unlikely that the prosecution could have supported a finding of

a ‘‘significant history of prior criminal activity.’ (Emphasis

ours.) At any rate, it did not do so, as no evidence whatever was

introduced by either side as to the defendant's prior criminal

record. Despite the blank record on Lashley's prior criminal

history, the trial judge refused the defense attorney's request for

the mitigating-circumstance instruction.

The Eighth Amendment requires a trial court to allow

the jury to consider, as a mitigating factor, ‘‘any aspect of a de-

fer.ant’s character or record and any of the circumstances of

the .1fense that the defendant proffers as a basis for a sentence

less than death.’ Lockett v. Ohio, 438 U.S. 586, 604 (1978).

The Court's language strongly suggests, if it does not dictate, a

liberal allowance of mitigating-circumstance evidence and

instructions by trial courts. What's more, although not neces-

sary to our decision, the mitigating circumstance involved in

this case was expressly mentioned by a Missouri statute. Lock-

ett obligated the Missouri trial court to give the requested

instruction, if it was warranted by the evidence. We believe that

it was.

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 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 tal judge’s failure to give

the requested instruction under these circumstances violated the

defendant's Eighth Amendment rights as expressed in Lockett.

Accordingly, the Missouri trial court must promptly

commence proceedings to resentence the petitioner, unless the

A-13

State wishes to reduce his sentence to life imprisonment.

Lockett requires the State -- which is in a peculiarly advanta-

geous position to show a significant prior criminal history, if

indeed Lashley has such a history -- to come forward with

evidence, or else the court must tell the jury it may consider the

requested mitigating circumstance. If the point is raised by the

defendant, the state trial judge should determine at the time of

resentencing if introduction of such evidence is barred by the

Double Jeopardy Clause. See Bullington v. Missouri, 451 U.S.

430 (1981). We express no view on the merits of this issue. We

simply hold that the lack of any evidence whatever of Lashley’s

prior criminal activity entitled the defendant to the requested

instruction, and the Missouri trial court’s failure to give that

instruction violated the Eighth Amendment as explained in

Lockett.

ITI.

Insofar as the conviction itself is concerned, we agree

with the District Court that it is not invalid under the federal

Constitution. With respect to the sentence, however, we re-

verse, and remand the matter to the District Court with instruc-

tions to grant the writ unless the State commences proceedings

to resentence the petitioner consistently with this opinion,

within such reasonable time as the District Court may fix.

It is so ordered.

FAGG, Circuit Judge, dissenting and concurring.

| dissent from the court’s holding in part H, which

overturns Lashley’s death sentence. | join in parts A-F and

concur in part G of the court’s opinion. | would thus affirm both

Lashley’s capital murder conviction and death sentence.

A-14

Dissent from Part H

erses a brutal killer's death

sentence because the state trial judge refused to give a —

ing circumstance instruction on a barren record. = a =

Although the court concedes Lashley failed to 0 a oi

dence showing he had no significant a oe rear wid

his requested instruction, 3

ne eas aul to the instruction once he asked for 7 a ron

view, the court’s position is contrary to controlling Sup

Court precedent. I thus dissent.

In part H, the court rev

e court is simple: In conclud-

eement with th .

lise circumstance instruc-

titled to a mitigating 3

ee eat ~aet ! hatever of Lashley 's

prior criminal activity,’ ante at 12, the court misapplies Locker!

v. Ohio, 438 U.S. 586 (1978) (pl

sentencer in a capital case must

mitigating evidence offered by the oo | deo

Eddings v. Oklahoma, 455 US. 104, 112 (19 ). _

record contains evidence of a particular mitigating

stance, the defendant is entitled to have the jury ee

that circumstance. Penry Vv. Lynaugh, 492 U.S. , M '

(1989). Lockett and Penry, however, do not = prt

proposition that state = courts = wate ——

ing circumstances when support ce

_ Due process requires that state tral courts & |

an one instructions only when bo ae

warrants those instructions. See Hopper v Evans, oom

611 (1982). Indeed, injecting mitigating — ast

tions into capital cases without supporting eviden

‘‘invite[] the jurors to disregard their oaths,”" and wou'.

invariably lead to conjectural and capricious sentencing dec:

A-15

sions--the very thing Lockett seeks to avoid. /d.

I believe the court has made three mistakes in holding

‘“*the Missourn tral [judge]’s failure to give [Lashley’s re-

quested] instruction violated the Eighth Amendment as ex-

plained in Lockert.’’ Ante at 12. First, the court is mistaken

when it states ‘‘Lockert makes it clear that [Lashley] is not

required to meet any particular burden of proving a mitigal:..g

factor .. . before the [jury] is permitted to consider [the factor]."’

Ante at 11. Contrary to the court’s reading of Lockett, the

Supreme Court expressly left this question open, stating, ‘‘[W]e

need not address [the] contention .. . that it violates the

Constitution to require defendants to bear the risk of nonpersua-

sion as to the existence of mitigating circumstances in capital

cases."" Lockett, 438 U.S. at 609 n.16. Since Lockett, the

Supreme Court has held the Constitution is not violated when a

state requires capital defendants to bear this nsk. Walton v.

Arizona, 110 S.Ct. 3047, 3055 (1990) (plurality); see also id. at

3066-68 (Scalia, J., concurring) (rejecting Lockett as unsound

and without constitutional foundation). Based on the holding in

Walton, | believe it is clear the state trial judge did not violate

Lockett by refusing to give Lashley’s requested mitigating

circumstance instruction on an empty record.

Second, the court mistakenly holds ‘*Lockett requires

the state ... tocome forward with evidence [showing Lashley's

criminal history], or else the [trial] court must tell the jury it

may consider the requested mitigating circumstance."’ Ante at

12. The Supreme Court rejected this position in Walton,

holding there is no ‘‘constitutional imperative .. . that would

require the [sentencer] to consider the mitigating circumstances

claimed by a defendant unless the State negate(s} them."* 110

S.Ct. at 3055. In Lashley’s case, the State had neither a burden

nor a reason to introduce evidence refuting a mitigating circum-

A-16

stance about which the record was otherwise silent.

Finally, the court mistakenly concludes Lockett obli-

gated the state trial judge to give Lashley’s requested mitigating

circumstance instruction even though the record did not contain

a shred of evidence to support it. Essentially, the court holds

that a lack of evidence is itself evidence. Ante at ll. I my this

based on the court's reasoning that although ‘‘(tJhe evidence

before the jury . . . presented a blank slate(, a]s 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. ’ Id. (emphasis

mine). Simply stated, the court's position Is at odds with

Lockett, Eddings, Penry, and Walton. These cases make clear

that before a capital defendant is entitled to have the jury

consider a mitigating circumstance, the defendant must first

present evidence supporting that circumstance. Indeed Walton

leaves no doubt the constitution permits states to insist capital

defendants establish ‘‘by a preponderance of the evidence, the

existence of mitigating circumstances sufficiently substantial to

call for leniency.’” 110 S.Ct. at 3055.

Unlike the defendant in Walton, however, Lashley did

not have to prove his mitigating circumstances bya preponder-

ance of the evidence. Under Missouri law, Lashley was mere!»

required to introduce some evidence in support of the mutigat-

ing circumstance instruction he requested. See State v. Lash ley.

667 S.W.2d 712, 715-16 (Mo.), cert. denied, 469 U.S. 875

(1984). The Missouri Supreme Court expressly held Lashley

was not entitled to his requested instruction because he chose to

leave the record completely silent on the issue of his past

criminal activity. /d. Thus, the state trial judge properly demied

Lashley’s requested instruction, and this did not impinge on

Lashley’s constitutional rights. Although Lockett and Penn

guarantee capital defendants the right to offer mitigating cv'-

<_< ee

A-17

dence and the nght to submit jury instructions giving effect to

that evidence, Lockett does not require a state to abandon its

rules of evidence. See Walton, 110 S.Ct. at 3055. Thus, given

these circumstances Lashley cannot complain about the trial

judge's refusal to give an instruction that had no foundation

whatsoever in the record.

In my view, the court unnecessarily reverses Lashley’s

death sentence based on the state trial judge's proper refusal to

give a requested jury instruction that has no support in the

record. To do so, the court misreads Lockert, fails to follow

Walton, overlooks Penry and Hopper, and rejects Missouri state

law. Because the court ignores this controlling authority, |

dissent.

Concurrence in Part G

In part G and footnote one, the court’s opinion com-

bines two distinct contentions Lashley raises on appeal about

his attorney's failure to introduce evidence in support of his

requested mitigating circumstance instruction. First, Lashley

contends he received ineffective assistance of counsel because

his trial attorney failed to introduce mitigating evidence in

support of his requested instruction. Judge Amold, Judge

Waters, and | agree the district court properly rejected this

contention, and further explanation of the court’s position is

unnecessary. Ante at 8-9 (main text of part G). In his second

contention, Lashley claims the state trial court, in violation of

Lockett, precluded his attorney from introducing supporting

mitigating evidence. Judge Arnold agrees with Lashley and

would reverse based on Lockett. See ante at9n.1. Judge Waters

and |, however, disagree with Lashley’s contention. /d. Be-

cause footnote one of the court’s opinion only briefly states our

position, | write separately to explain our holding.

A-18

In his Lockett contention, Lashley claims he was denied

due process because the state trial judge prevented his attorney

from introducing evidence to support his request for the miti-

gating circumstance instruction. According to Lashley, the trial

judge erroneously ruled the State could use evidence of his

juvenile record to rebut his criminal-history witnesses. See

Mo.Rev.Stat. § 211.271 (1978) (statute governing use of juve-

nile records). A careful review of the record reveals Lashley’s

claim is unfounded.

During a pretrial conference preceding the penalty

phase of Lashley’s trial, the State broached the subject of

Lashley’s juvenile record and its admissibility under state law.

(T. 709). Lashley’s attorney made her trail strategy clear to the

trial judge and the prosecutor when she responded, “I am not

going to ask [Lashley’s witnesses] about {Lashley’s] juvenile

record and | am .. . making a motion in limine that the State be

prohibited from introducing . . . Or eliciting evidence of ve

Lashley’s juvenile record.’’ (T. 711). The prosecutor replied

he did not intend to introduce evidence of Lashley’s past

criminal activities unless defense witnesses testified Lashley

had no criminal history. (T. 711-12).

In presenting her motion and during the ensuing dia-

logue with the prosecutor and the tal judge, Lashley’s attorney

repeatedly emphasized she was not going to ask her witnesses

any questions about Lashley’s juvenile record or his cnminal

activity. (T. 712). Indeed, with prepared questions in hand,

Lashley’s attorney told the trial court she would ask two defense

witnesses how they knew Lashley, how Lashley acted around

them, whether they loved Lashley, and whether they wanted the

jury to spare Lashley’s life. (T. 712, 714-15). The trial judge

asked Lashley’s attorney whether she intended to ask these

witnesses about Lashley’s behavior, and the attorney responded,

‘*] didn’t plan to ask that question.” (T. 713-14). The

A-19

prosecutor had no quarrel with the proposed questions, and he

assured the judge and Lashley’s attorney the State would not

delve into Lashley’s past criminal activities. With this under-

standing between counsel, the trial judge never ruled on Lash-

ley’s motion in limine.

It seems to me Judge Armold runs against the grain of the

record when he states the trial judge ‘‘told counsel that if she

insisted on offering evidence that Lashley had no criminal

record, [the judge] would permit the state to counter this

evidence by showing that [Lashley] had committed juvenile

offenses.’’ Ante at9n. 1. Lashley’s attorney stated no less than

three times on the record that she was not going to ask her wit-

nesses about Lashley’s past criminal behavior. (T. 711-12). In

response, the trial judge gently urged Lashley’s attorney to

present mitigating evidence by telling her the state had a

reasonable position that Lashley was not entitled to a mitigating

circumstance instruction without first presenting supporting

evidence (T. 712). Then, in the midst of Lashley’s attorney's

fourth declaration that she was not going to present any evi-

dence cf Lashley’s past criminal history, the tnal judge ob-

served, ‘‘If you are going to try to prove by these witnesses that

this is [Lashley’s] first problem with the law, when in fact it is

not, I have .. . problems with your proposition (that the state

. could not rebut this evidence].’’ (T. 714). In response,

Lashley’s attorney reiterated the prepared questions she in-

tended to ask her witnesses--all of which were unrelated to

Lashley’s criminal history--and the trial judge told her ‘‘no

problem.”’ (T. 715). In sum, the dialogue between counse! and

the trial judge lends no support to Judge Armold’s conclusion

that Lashley’s attorney ‘‘made a reasonable effort to introduce

[mitigating] evidence but was prevented from doing so by an

incorrect ruling of the state trial [judge].’" Ante at 9n.1.

Contrary to Lashley’s argument that the mal judge

A-20

interfered with his presentation of criminal history evidence,

the Missouri Supreme Court found ‘‘it was defense counsel's

position that the absence of any criminal history being adduced

warranted the [mitigating circumstance] instruction."’ State v

Lashley, 667 S.W.2d at 715; (T. 725). Indeed, Lashley’s

attorney repeatedly explained to the trial judge she was “‘not

going to ask [her witnesses] whether or not {Lashley} ha{s) a

record.’ (T. 725). Although the trial judge believed Lashley’s

attorney should present mitigating evidence based on Lashley’s

past criminal history, it was the attorney's strategy to forgo the

introduction of any supporting evidence because she believed

Lashley was entitled to the requested instruction regardless

whether she presented supporting evidence. State v. Lashley,

667 S.W.2d at 715.

Thus, the trial judge in no way precluded Lashley’s

attorney from introducing mitigating circumstance evidence

shedding light on the extent of Lashley’s criminal history. In

any event, the cause for the attorney's concern--the State's

introduction of Lashley’s criminal record as a juvenile--never

materialized at trial. Lashley's attorney asked each and every

question she anticipated asking; the State never broached the

subject of Lashley’s past criminal activities; and the tnal judge

did not interfere with the attorney’s trial strategy. (T. 746-55).

Lashley’s attorney may have feared that if she offered

evidence Lashley had no significant history of criminal activity,

the State might be permitted to respond with unfavorable

evidence of Lashley’s criminal behavior as a juvenile--evi-

dence she deemed inadmissable under state law. Nevertheless,

this did not relieve her burden to present Lashley’s mitigating

evidence in the first place. Simply put, Lashley’s attorney

should have offered testimony about Lashley’s behavioral

history and then objected to the State's cross-examination of her

witnesses if it exceeded its permissible scope under Missoun

A-21

Armontrout, 880 F.2d 1, 11 (8th Cir. 1989), cert.

(1990). Had Lashley and his attorney

followed this course, the record presumably would have sup-

ported Lashley’s requested instruction, and if the State had

offered evidence of Lashley’s juvenile record or his underlying

criminal behavior in a manner that violated state law, that error

would have been preserved for review. Lashley and his attor-

ney, however, decided against introducing any evidence show-

ing Lashley did not have a significant criminal history. Thus,

Judge Waters and | agree Lashley’s claim that the trial judge

prevented his attorney from establishing a mitigating circum

stance in violation of Lockett must be rejected.

law. Byrd v.

denied, 110 S.Ct.’ 1326

Conclusion

Although I agree this court must reject Lashley’s con-

tentions attacking his capital murder conviction, | disagree with

the court’s decision to overturn Lashley’s death sentence. |

would thus affirm the district court’s denial of Lashley's

application for a writ of habeas corpus.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

A-22

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 90-1036EMSL

Frederick Lashley,

Appellant,

Order Denying Petition for

Rehearing and Suggestion

v. for Rehearing En Banc

William Armontrout,

Warden

Missouri Department

of Corrections,

nr, *# #© © © © © © © © @& &

Appellee.

The suggestion for rehearing en banc is denied. The

petition for rehearing is also denied.

July 1, 1992

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

A-23

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

FREDERICK LASHLEY,

Petitioner,

)

)

)

v. ) No. 87-897 C (2)

)

WILLIAM )

ARMONTROUT, )

Respondent. )

JUDGMENT

In accordance with the mandate of the United States

Court of Appeals for the Eighth Circuit filed July 9, 1992, and

incorporated herein,

IT IS HEREBY ORDERED, ADJUDGED and DE-

CREED that the petition of Frederick Lashley for habeas

corpus relief, only on petitioner’s claim that the Missouri trial

court violated the Eighth Amendment by refusing to give a

mitigating-circumstance instruction on the absence of a signifi-

cant history of criminal activity during the penalty phase of

petitioner’ s trial, is conditionally GRANTED; said writ to issue

unless the State of Missouri begins proceedings to resentence

petitioner for the crime charged, or determines that petitioner's

sentence should be reduced to life imprisonment, within ninety

days of the date of this order. In all other respects, the writ is

DENIED.

Dated this 20th day of July, 1992.

l

UNITED STATES DISTRICT JUDGE

Ce — e

A-24

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

FREDERICK LASHLEY,

Petitioner, No. 87-897 C (2)

BILL ARMONTROUT,

)

)

)

v. )

)

)

Respondent. )

ORDER

In accordance with the memorandum filed this date and

incorporated herein,

IT IS HEREBY ORDERED that petitioner's habeas

corpus grounds | and 10 are DENIED and therefore DIS-

MISSED with prejudice.

IT IS FURTHER ORDERED that the stay of execution

shall remain in effect through January 12, 1990 to give peti-

tioner time to proceed with an appeal and seek a further stay

from the United States Court of Appeals for the Eighth Circuit.

After January 12, 1990, the stay of execution now in effect shall

be vacated.

Dated this 13th day of December, 1989.

/s/ Edward L. Filippine

UNITED STATES DISTRICT JUDGE

A-25

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

FREDERICK LASHLEY,

Petitioner, No. 87-897 C (2)

)

)

)

Vv. )

)

BILL ARMONTROUT, )

Respondent. )

MEMORANDUM

This matter is before the Court on the petition of

Frederick Lashley for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. The matter was referred to United States

Magistrate David D. Noce who filed his Report and Recom-

mendation. Magistrate Noce recommended that as to two of the

grounds in petitioner’s petition, | and 10, the petition be stayed

pending the Supreme Court’s disposition of similar issues in

cases pending before it. The Court adopted this recommenda-

tion and stayed the petition as to these two issues. They are now

ripe for review.

Petitioner is under sentence of death for the offense of

capital murder. In his first ground for relief he argues that the

death penalty represents cruel and unusual punishment because

he was seventeen years old when he committed the crime. This

ground for relief must now be denied. The Supreme Court has

held that the imposition of the death penalty on a seventeen year

old ‘‘does not offend the Eighth Amendment's prohibitions

against cruel and unusual punishment.’’ Stanford v. Kentucky,

—___ U.S. ___, 109 S.Ct. 2969, 2980 (1989).

The Court also stayed petitioner’s petition as to his tenth

ground in which he alleged he was denied his right to a fair and

impartial jury because the state was allowed to introduce

ee

A-26

inflammatory evidence not relevant to the victim’s injury. The

Stay was based on the Court’s belief that the Supreme Court

might rule on this issue in Thompson v. Oklahoma, _ US.

—__,. 108 S.Ct. 2687 (1988). The Supreme Court, however, did

not need to decide the issue in that case.

Petitioner’s confession, introduced at his trial, was that

he struck his victim on the head with an iron skillet Causing it to

break into two pieces. He then stabbed her in the head with a

butcher knife. See, State v. Lashley, 667 S.W.2d 712,714 (Mo.

banc 1984). Half the skillet was found laying near the victim.

The other half of the skillet was laying near a small hammer.

The skillet pieces and the hammer were introduced into evi-

dence. There was no evidence the hammer was used in the

commission of the crime. Thus, petitioner asserts its introduc-

tion into evidence inflamed the jury.

Assuming, without so deciding, that it was error to

allow the prosecutor to introduce the hammer into evidence

there is no remedy under 28 U.S.C. § 2254 unless there was a

violation of petitioner’s due process rights. To show a due

process violation petitioner must show the introduction of the

hammer was so egregious as to render fundamentally unfair the

entire trial. In other words, petitioner must show that but for the

introduction of the hammer the outcome of the trial would have

been different. Hamilton v. Nix, 809 F.2d 463, 470 (8th Cir.

1987).

Whether before he stuck a butcher knife into her head

petitioner struck his victim with a skillet, as he confessed he did,

or struck her with a hammer, as might be inferred from the

presence of the hammer, does not at all change the character and

nature of his act. The petitioner has failed to show that the jury

would have found differently if it had not been presented with

the possibility that the victim was struck by a hammer instead

of the skillet. The Court agrees with the panel of the Missouri

Supreme Court when it held petitioner ‘‘does not demonstrate

how or in what manner he was prejudiced by the hammer being

A-27

received in evidence.’’ Lashley, supra, 667 S.W.2dat714. The

Court is not persuaded that the outcome would have been

different had the hammer not been introduced into evidence.

Thus, petitioner’s tenth ground for relief will be denied.

This memorandum and the accompanying order dis-

pose of grounds | and 10 of petitioner’s petition for a writ of

habeas corpus. Grounds 2 to 9 and 11 to 13 of said petition were

disposed of in the Court’s orders of June 9, 1988 and January 3,

1989. Thus, all grounds of the petition have now been disposed

of by the Court and the Court’s rulings are final orders.

Petitioner is under a sentence of death. The Court stayed

his execution so that he could pursue his petition for a writ of

habeas corpus. (Memorandum and Order of May 15, 1987.)

That stay will be continued for thirty days to enable petitioner

to pursue an appeal if he deems it appropriate.

An appropnate order will accompany this memoran-

dum.

Dated this 13th day of December, 1989.

/s/ Edward L. Filion:

UNITED STATES DISTRICT JUDGE

A-28

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

FREDERICK LASHLEY,

)

Petitioner, ) No. 87-897 C (2)

)

v. )

)

BILL ARMONTROUT, )

Respondent.)

MEMORANDUM AND ORDER

This matter is before the Court on respondent’s motions

to reconsider. Petitioner has not responded thereto.

Respondent moves the Court to reconsider its orders of

June 9, 1988 and October 13, 1988. In its order of June 9, 1988,

the Court dismissed petitioner’s federal habeas corpus grounds

4, 6 and 9 without prejudice for failure to exhaust state reme-

dies. Respondent argues that these grounds should have been

dismissed with prejudice. Petitioner failed to advance these

grounds at the appropriate stage of his state court appeal.

Reconsideration is thus procedurally barred. Further, petitioner

has failed to meet the cause and actual prejudice standard as

required under these circumstances to entitle a petition to

federal habeas corpus review. See Wainwright v. Sykes, 433

U.S. 72 (1977). Respondent’s argument is well taken; and, after

careful reconsideration of the matter, the Court will therefore

order that grounds four, six and nine of the petition for habeas

corpus be dismissed with prejudice.

In its order of October 13, 1988, the Court extended the

stay on grounds | and 10 of the petition pending the disposition

of High v. Zant, Cause No. 87-5666, and Wilkins v. Missouri,

Cause No. 87-6026, which were set for argument before the

United States Supreme Court during the current term. Respon-

A-29

dent objects to the extension of the Stay, arguing that the

resulting delay in the litigation is unwarranted.

As was noted in respondent’s memorandum, evidence

was revealed in High indicating that the defendant may have

lied to authorities about his age at the time his crime was

allegedly committed. The United States Supreme Court there-

after granted certiorari in another death sentence case involving

a seventeen-year-old defendant. Stanford v. Kentucky, No. 87-

5765. Wilkins and Stanford are set for oral argument during the

current term, and it continues to appear likely that the issue set

out in ground | of petitioner’s petition for writ of habeas corpus

will be resolved by the Supreme Court’s decisions in these

cases. Further, the Clerk of the United States Supreme Court

has recently indicated to this Court that it is highly likely that

these cases will indeed by considered by the Supreme Court

during the current term. The Court will therefore extend the

Stay pending resolution of Wilkins and Stanford by the Su-

preme Court. The Court will reconsider the Stay should it come

ot the attention of the Court that these Supreme Court cases are

not resolved as anticipated hereinabove.

Accordingly,

IT IS HEREBY ORDERED that respondent’s motion

to reconsider the Court’s order of June 9, 1988 is GRANTED

and grounds 4, 6 and 9 of Frederick Lashley’s petition for writ

of habeas corpus are DISMISSED with prejudice.

IT IS FURTHER ORDERED that respondent's motion

to reconsider the Court’s order of October 13, 1988 is DENIED.

Dated this 3rd day of January, 1989.

; "nae

UNITED STATES DISTRICT JUDGE

A-30

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

FREDERICK LASHLEY,

Petitioner,

No. 87-897 C (2)

)

}

)

)

v. )

)

BILL ARMONTROUT, )

Warden, Missouri State )

Penitentiary, )

Respondent. )

ORDER

This matter is before the Court on the petition of

Frederick Lashley for a writ of habeas corpus. The matter was

referred to United States Magistrate David D. Noce, who has

filed his Report and Recommendation. 28 U.S.C. §636(b).

Respondent has objected thereto.

After careful consideration of this matter,

IT 1S HEREBY ORDERED that the Report and Recom-

mendation of the United States Magistrate is SUSTAINED and

ADOPTED.

IT IS FURTHER ORDERED that petitioner’s federal

habeas grounds 4, 6, and 9 are DISMISSED without prejudice

for failure to exhaust state remedies.

IT IS FURTHER ORDERED that petitioner’s grounds

5 and 11 are DISMISSED with prejudice for failure to raise a

A-31

constitutional claim.

IT IS FURTHER ORDERED that petitioner’s grounds

2, 3, 7, 8, 12 and 13 are DENIED and therefore DISMISSED

with prejudice.

IT IS FURTHER ORDERED that petitioner's petition

as to grounds | and 10 is STAYED pending the Supreme

Court’s disposition of the issues in Thompson v. Oklahoma,

— U.S. __, 107 S.Ct. 1284 (1987) (cert. granted). The parties

shall advise the Court within three days of notice of disposition.

Dated this 9th day of June, 1988.

l

UNITED STATES DISTRICT JUDGE

A-32

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

FREDERICK LASHLEY,

Petitioner, No. 87-897 C (2)

)

)

)

)

y. )

)

BILL ARMONTROUT;' )

)

)

Respondent.

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE

This cause is before the Court upon the petition of

Frederick Lashley for a writ of habeas corpus pursuant to 28

U.S.C. §2254. This matter was referred to the undersigned

United States Magistrate for review and a recommended dispo-

sition. 28 U.S.C. §636(b).

Petitioner Lashley was convicted of capital murder in

the Circuit Court of the City of St. Louis in April of 1982. He

was sentenced to death. The conviction was affirmed on appeal

by the Missouri Supreme Court. State of Missouri v. Lashley,

667 S.W.2d 712 (Mo. en banc), cert. denied, 469 U.S. 873

(1984). Petitioner thereafter moved to vacate the judgment

under Missouri Supreme Court Rule 27.26. The Circuit Court

held an evidentiary hearing and denied relief. The Missouri

Court of Appeals affirmed. Lashley v. State of Missouri, 721

S.W.2d 31 (Mo.App. 1986), cert. denied, __ U.S. __, 107

S.Ct. 1912 (1987).

' The Court has been advised by respondent Armontrout that his

first name is Bill, not William.

A-33

On May 14, 1987, petitioner filed the instant petition for

federal habeas corpus relief pursuant to 28 U.S.C. §2254.

Petitioner asserts 13 grounds for relief: (1) he was subjected to

cruel and unusual punishment by the imposition of the death

penalty when he had not reached the age of majority at the time

of the offense; (2) he was denied effective assistance of counsel

because his attorneys failed to investigate or present the defense

of diminished capacity; (3) he was denied effective assistance

of counsel because his attorneys failed to present statutory

mitigating evidence of diminished capacity during the penalty

phase of the trial; (4) he was denied effective assistance of

counsel because his attorneys failed to present evidence to

support the statutory mitigating circumstance that petitioner

had no significant history of prior criminal activity; (5) he was

denied effective assistance of counsel, due process and equal

protection, because the 27.26 trial court failed to permit his

attorney to withdraw when a conflict of interest was present; (6)

he was denied effective assistance of counsel because his

attorneys failed to introduce evidence that the felony was

committed under the influence of extreme mental or emotional

disturbance, a statutory mitigating circumstance; (7) he was

denied due process and equal protection when the trial court

refused to submit to the jury the Statutory mitigating circum-

stance that the petitioner had no significant history of prior

criminal activity; (8) he was denied due process, equal protec-

tion, right to trial by jury and right against double jeopardy

when the trial court denied his motion for a judgment of

acquittal on the death penalty or for a mistrial on the issue of

punishment; (9) he was denied due process, equal protection,

and the right to confront witnesses when the Missouri Supreme

Court used his juvenile record to affirm the death penalty; (10)

he was denied his right to a fair and impartial jury when the state

was allowed to introduce inflammatory evidence that was not

relevant to the injury to the victim; (11) he was denied due

Process and equal protection when the death penalty imposed

A-34

was disproportionate to other cases in which that sentence was

not imposed; (12) he was denied due process and equal protec-

tion because the jury which convicted him was ‘‘death-quali-

fied.’’

Il. Discussion of the merits.

Of petitioner’s eleven cognizable federal habeas claims,

eight have been exhausted in the state courts. Six of these

claims (grounds 2, 3, 7, 8, 12, and 13) will be addressed herein

on the merits. As noted above, it is recommended that grounds

one and ten be stayed pending the Supreme Court’s ruling in

Thompson v. Oklahoma, supra, 107 S.Ct. 1284.

Petitioner next argues in federal ground seven that the

trial court denied him due process and equal protection when it

refused to submit to the jury a profferred instruction on a

Statutory mitigating circumstance, §565.012.3(1), R.S.Mo.

(1982), i.e., that he had no significant history of prior criminal

activity. Petitioner contends that he was entitled to considera-

tion of any relevant mitigating factors that he might have

proferred to the trier of punishment. Eddings v. Oklahoma,

supra, 455 U.S. at 110; Lockett v. Ohio, 438 U.S. 586, 604

(1978).

The Missouri Supreme Court addressed this claim on its

direct review of petitioner's conviction:

Defendant contends the court commit-

ted reversible error in refusing to give his ten-

dered instruction on mitigating circumstances

which included the mitigating circumstance of

defendant having no significant history of prior

A-35

criminal activities.

At the instruction conference[,] defense

counsel and the prosecutor discussed the admiy-

sibility of defendant’s juvenile record. As a

result of defendant's counsel stating she was not

going to delve into her client's juvenile record

and the prosecutor's stating he did not intend to

do so unless defense witnesses stated defendant

had no prior criminal history, it was defense

counsel's position that the absence of any crimi-

nal history being adduced warranted the instruc-

tion. Defendant's position is refuted by the

italicized language contained in MAI-CR2d 15.44

which specifically states statutory mitigating

circumstances are to be supported by the evi-

dence. We so held in State v. Battle, 661 S.W.2d

487, 492 (Mo. banc 1983). There being no

evidence to support the statutory mitigating

circumstance, the trial court correctly refused

defendant's proferred instruction.

State of Missouri v. Lashley, supra, 667 S.W.2d at 715-71 6; Tr.

709-715, 725-726.

Federal courts in a habeas corpus proceeding are bound

by the interpretation of state law as enunciated by the highest

court of a state. See, Harkins v. Wyrick, 589 F.2d 387, 391 (8th

Cir. 1979). Missouri law requires that jury instructions be sup-

ported by the evidence presented at trial. State of Missouri v.

Battle, supra, 661 S.W.2d at 492; State of Missouri v. Lashley,

supra, 667 S.W.2d at 715-716; State of Missouri v. Williams,

652 S.W.2d 102, 114 (Mo. banc 1983).

Petitioner was not denied the opportunity to present

mitigating evidence to support the profferred instruction. (Tr.

710-15, 725-26.) Had the state trial court refused admission of

A-36

evidence of any mitigating factors, it would have violated

petitioner’s constitutional rights. Eddings v. Oklahoma, supra,

455 U.S. at 110; Lockett v. Ohio, supra, 438 U.S. at 604. The

decision to not present evidence on petitioner’s history of prior

criminal activity, or lack thereof, was a part of the trial strategies

by petitioner’s counsel and the prosecution (Resp. Exh. G, at

29-30; Tr. 711-14.) Therefore, the Court need not address the

possible extent to which the state could have properly intro-

duced evidence of petitioner’s history of prior criminal activity.

Without argument, the state would have been permitted to show

criminal activity by petitioner as an adult which had not npened

into conviction. The presence of other felonies committed by

petitioner while an adult was remarked upon by Judge Black-

mar in the direct appeal of petitioner’s conviction and sentence.

State of Missouri v. Lashley, supra, 667.S.W.2d at 717 (Black-

mar, J., concurring in party and dissenting in part).

Federal habeas relief would not issue on petitioner’s

seventh claim even if the trial court had erred by refusing to

submit the jury instruction.

In a §2254 habeas corpus proceeding, a federal

court’s review of alleged due process violations

stemming from a state court conviction is nar-

row. The petitioner must show that the alleged

improprieties were ‘‘so egregious that they fa-.

tally infected the proceedings and rendered his

entire trial fundamentally unfair.’’ .. . To carry

that burden, the petitioner must show that there

is a reasonable probability that the error com-

plained of affected the outcome of the trial - i.e.,

that absent the alleged impropriety the verdict

probably would have been different. ...

Hamilton y. Nix, 809 F.2d 463, 470 (8th Cir.) (en banc)

A-37

(footnote and citations omitted), cert. denied, 107 $.Ct. 3270

(1987). Petitioner is unable to show that the outcome in the

penalty phase ‘‘probably would have been different’’ had the

instruction been submitted to the jury. A jury is presumed to

reach a verdict based upon the law and facts presented to it. See,

e.g., Wainwright v. Witt, 469 U.S. 412, 423 (1984) (See

original). At the penalty phase of petitioner’s trial there was no

evidence presented to support the proffered jury instruction.

Because petitioner cannot meet his burden in demonstrating

that the outcome of the penalty phase would probably have been

different, his instant seventh claim for federal habeas corpus

relief should be denied.

Because the record clearly demonstrates that petitioner

is not entitled to federal habeas relief on his instant grounds 2,

3, 7,8, 12, or 13, an evidentiary hearing is not now required. In

sum, this petition for a writ of habeas ocrpus should be denied

as to petitioner’s instant claims 2, 3, 7, 8, 12, and 13.

RECOMMENDATION

For the reasons set forth above, it is the recommendation

of the undersigned United States Magistrate that peititoner’s

federal habeas grounds 4, 6, and 9, be barred from review by the

Court in his proceeding. It is further recommended that

petitioner’s grounds 5 and 11 be struck by the Court for failure

to raise any constitutional! claim with respect to those grounds.

It is further recommended that the instant petition be stayed

until the Supreme Court issues its opinion in Thompson vy.

Oklahoma. Petitioner's grounds 2, 3, 7, 8, 12, and 13 should be

denied on the merits. Finally, petitioner's motion for an

evidentiary hearing should also be denied. The parties are

advised that they have eleven (11) days in which to file written

A-38

objections to this Report and Recommendation.

/s/ David D, Noce

UNITED STATES MAGISTRATE

Signed this 29th day of March, 1988.

A-39

STATE of Missouri, Respondent

Vv

Frederick LASHLEY, Appellant.

No. 63994.

Supreme Court of Missouri,

En Banc.

March 20, 1984.

Rehearing Denied April 16, 1984.

BILLINGS, Judge.

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 concern-

ing 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

A-40

Tracy apartment. Sometime before 8:30 p.m., defendant en-

tered 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 front 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

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

A-41

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 8:30 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 immedi-

ately 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 night 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. Consequently, his claimed error in the

admission into evidence of a small hammer that was found by an

evidence technician near a piece of the iron skillet need not long

detain us. A photograph showing the hammer and piece of skillet

had already been received in evidence-without objection. As a

physical object found at or near the scene of the crime, and of a

type that could have been used to deliver a felling blow, we

cannot say the hammer had no relevancy or probative value. See

State v. Neal, 591 S.W.2d 178, 180 (Mo.App. 1979). Defendant

' There was substantial evidence that defendant was fully and

completely Miranda-ized and that his confessions met constitu-

tional standards.

A-42

does not demonstrate how or in what manner he was prejudiced

by the hammer being received in evidence and we note that the

only mention of the hammer in closing arguments was made by

defense counsel. In any event, it is beyond dispute that the

butcher knife wielded by the defendant was the death weapon.

The point is denied.

Defendant next launches a broadside attack on the

‘*Witherspooning’’ [Witherspoon v. Illinois, 391 U.S. 510, 88

S.Ct. 1170, 20 L.Ed.2d 776 (1968)] of the jury panel in the guilt

stage of the trial and further contends that because of the

prejudice resulting from such he was entitled to a different jury

for the penalty phase of the trial. We considered and rejected

identical contentions in State v. Guinan, 665 S.W.2d 325 (Mo.

banc 1984). The point is denied.

At the punishment phase of trial, the court gave Instruc-

tion No. 20 to the jury for their determination of whether the

State proved, beyond a reasonable doubt, that the defendant

<_ murdered Janie Tracy for the purpose of receiving money or any

other thing of monetary value. The jury initially returned and

presented the court with a verdict form which stated ‘‘there was

no evidence to disprove he entered the house for the reason of

obtaining money’’. The experienced trial judge told the jury the

verdict was not in the proper form and requested them to retire

and read the instructions. Defense counsel, although agreeing

‘‘the verdict is improper’’, objected to the court’s returning the

jury for further deliberations, and moved for a mistrial, which

was overruled. The jury thereafter returned the verdict form

accepted by the trial court in this case.

Defendant first argues that the trial court’s failure to

accept the original punishment verdict as an acquittal of the

statutory aggravating circumstance was erroneous because the

original punishment verdict form returned indicated that the

A-43

jury had shifted the burden of proof and constituted a finding

against the State as to the aggravating circumstance submitted.

Next, defendant argues the improper wording of the aggravat-

ing circumstance verdict form showed that the jury did not find

beyond a reasonable doubt the aggravating circumstance sub-

mitted and, therefore, the death penalty cannot be assessed

because the jury’s finding as to the aggravating circumstance is

controlling over its intention to assess the death penalty. Fi-

nally, defendant argues that the trial court erred in telling the

jury that the verdict was in improper form because this amounted

to a directed verdict for the State and a comment on the

evidence.

The law is clear that when a jury returns a verdict in

improper form, it is the duty of the trial court to refuse to accept

the same and require further deliberations until a verdict in

proper form is returned. State v. Helm, 624 S.W.2d 513, 519

(Mo.App. 1981). The jury’s verdict is not binding until it is

accepted by the court and the jury discharged. State v. Hurley,

602 S.W.2d 838, 839-40 (Mo.App. 1980). Consequently, there

is no merit in defendant's claim that he was ‘‘acquitted’’ of the

Statutory aggravating circumstance by the jury’s improperly

worded verdict form. Further, the return of a verdict in

improper form and the refusal by the trial court to accept it is not

a situation which places a defendant in double jeopardy. State

v. Jones, 583 S.W.2d 561, 562 (Mo.App. 1979); State v.

Summers, 501 S.W.2d 548, 550-51 (Mo.App. 1973). The

verdict form accepted by the court found the statutory aggravat-

ing circumstance that authorized the imposition of the ultimate

penalty.

The trial judge in this case not only correctly directed

the jury to further deliberate and return a verdict in proper form,

but was careful to not prejudice the defendant in any manner in

so doing. The court merely told the jury that the verdict was not

A-44

in proper form and asked them to retire and read the instruc-

tions. The court in no manner indicated to the jury why the

verdict was not in proper form, and clearly did not indicate his

desires as to the form that they should return. The court could

not have handled the situation in a more neutral manner. The

point is denied.

Defendant 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 activi-

ties.

At the instruction conference defense counsel and the

prosecutor discussed the admissibility of defendant's juvenile

record. As a result of defendant's counsel stating she was not

going to delve into her client’s juvenile record and the prosecu-

tor’s stating he did not intend to do so unless defense witnesses

stated defendant had no prior criminal history, it was defense

counsel's position that the absence of any criminal history being

adduced warranted the instruction. Defendant's position is

refuted by the italized [sic] language contained in MAI-CR 2d

15.44 which specifically states statutory mitigating circum-

stances are to be supported by the evidence. We so held in State

v. Battle, 661 S.W.2d 487, 492 (Mo. banc 1983). There being

no evidence to support the statutory mitigating circumstance,

the trial court correctly refused defendant's proffered instruc-

tion.

Defendant’s final point is that the sentence of death is

excessive and disproportionate to the penalty imposed in simi-

lar cases, considering both the crime and the defendant.

Our review of the imposition of the death penalty is

mandated by § 565.014, RSMo 1978. Such a review includes

A-45

the entire record and transcript and the report prepared by the

trial judge. State v. Battle, 661 S.W.2d at 493.

Defendant does not suggest nor do we find that the

ultimate penalty resulted from passion, prejudice, or any other

arbitrary factor. There is substantial evidence to support the

jury’s finding of the statutory aggravating circumstance beyond

a reasonable doubt. The facts and circumstances clearly dem-

onstrate that the defendant deliberately and with premeditation

brutally took the life of the physically infirm woman, who for

many years had care for and reared him, in order to rob her. He

unlawfully entered her home knowing she was not present and

laid in wait for her, after setting the stage by unscrewing the

front room light. He possessed a cast iron skillet he had found

on the kitchen stove, and, inferentially, a butcher knife from the

kitchen. When she entered the darkened bedroom he struck her

with sufficient force to break the iron skillet into two pieces. He

then plunged the knife into the defective portion of her skull, the

seven and one-half inch blade penetrating her brain. The savage

thrust of the knife resulted in rendering her brain dead by the

time she was received in the emergency room of the hospital.

Defendant then took the victim’s money and car keys and drove

away in her car. He anda friend got something to ‘‘drink’’ with

two dollars of his ill-gotten gains and were joyriding in the

stolen vehicle when apprehended by officers. By his deliberate

and premeditated acts, the defendant demonstrated a callous

and marked indifference to human life.

As we held in State v. Bolder, 635 S.W.2d 673 (Mo.

banc 1982), cert. denied, __._ U.S. ___, 103 S.Ct. 770, 74

L.Ed.2d 983 (1983), and reaffirmed in Battle, death-waived

cases are not relevant in our proportionality review and defen-

dant’s citation of such cases do not aid him. In cases involving

the statutory aggravating circumstance of murder for the pur-

pose of receiving money or any other thing of monetary value,

A-46

none approach the classic lying in wait of the defendant in this

case to kill a helpless and crippled middle-aged woman for her

money. See State v. McDonald, 661 S.W.2d 497 (Mo. banc

1983); State v. Gilmore, 661 S.W.2d 519 (Mo. banc 1983).

During the sentencing phase of defendant's trial and in

bref and oral argument to this Court, the age of the defendant

at the time of the murder was heavily stressed as a mitigating

factor with the obvious hope that the lesser penalty for capital

murder would be forthcoming. The jury resolved the matter

against the defendant. The trial judge, in his report to this Court

said:

Under the facts of the case considered in

the light of the brutal aspects contained therein,

the sentence is an appropriate one even though

the defendant is a young person.

Defendant was 17 years and one month old at the time

of the killing. He is now 20 years old. He had completed the

12th grade in school and is considered average in intelligence.

From age 13 to 16 he was committed by juvenile authorities to

various institutions on several occasions for violating the law.

While in custody for the present offense he told officers he had

committed several felonies after attaining adult status.

What we said in State v. Battle, supra, at 494, on the

matter of the death penalty and the defendant's age, is equally

applicable in this case.

The judgment is affirmed.

RENDLEN, C.J., and WELLIVER, HIGGINS, GUNN

and DONNELLY, JJ., concur.

A-47

BLACKMAR, J., concurs in part and dissents in part in

separate opinion filed.

BLACKMAR, Judge, concurring in part and dissenting

in part.

I am uneasy with the suggestion in the principal opinion

that the defendant has the burden of introducing evidence in

support of the mitigating circumstance set out in § 565.012.3.(1)

[sic], RSMo Cum.Supp. 1982, as follows:

The defendant had no significant history

of prior criminal activity.

There should be a rebuttable presumption that a defen-

dant has no such significant history. It is established law,

furthermore, that a juvenile record does not constitute ‘‘crimi-

nal activity.’’ Section 211.271, RSMo 1978. See State ex rel.

R.L.W. v. Billings, 451 S.W.2d 125, 127 (Mo. banc 1970);

State ex rel. Whittaker v. Webb, 605 S.W.2d 179, 182-83

(Mo.App. 1980); In re C___, 314 S.W.2d 756, 760 (Mo.App.

1958).

Section 565.012.3.(1) [sic], however, refers to ‘‘crimi-

nal activity’’ and not to ‘‘convictions.’’ The state should be

able to show criminal activity which has not ripened into

conviction, subject to the trial court's discretion to control the

scope of the trial to keep it from getting too far out of bounds.

There are indications in the record before us of other felonies

committed by the defendant while an adult, but these may not

have been offered into evidence during the trial. Because of the

Court’s vote I have not further explored the possibility that

remand for the taking of further evidence might show that the

trial court properly refused to instruct on absence of criminal

conduct.

A-48

I adhere to the views expressed in State v. Battle, 661

S.W.2d 487, 495 (Mo. banc 1983) as to the imposition of a death

sentence on a very young offender, and cannot add to these

views except to say that Battle’s offense was much more

gruesome.

The principal opinion refers to deliberateness as demon-

strated by ‘‘lying in wait.’’ The case is not so aggravated as

State v. Mcllvoy, 629 S.W.2d 333 (Mo. banc 1982), in which

the defendant stalked the victim on two occasions and then shot

him repeatedly, in order to collect a promised $1,000. I believe

that this defendant's extreme youth is a circumstance compa-

rable to McIlvoy’s demonstrated susceptibility to influence, as

shown by expensive psychiatric testimony. I reiterate my

observations in State v. McDonald, 661 S.W.2d 497, 518 (Mo.

banc 1983), as to the reluctance of juries to impose death

sentences when the sole statutory aggravating circumstance is

robbery. State v. Gilmore, 661 S.W.2d 519 (Mo. banc 1983) is

not at all comparable to this case.

It appears that I am out of step with the majority of the

Court in sentence review under § 565.014, RSMo 1978. |

believe that, under that section, we are obliged to exercise

independent judgment, rather than simply determining whether

the jury’s recommendation is supported by the record. As in

McDonald and Battle, | would set aside the death sentence in

this case, but would affirm the conviction.

;

:

7

A-49

90-1036EMSL

IN THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

FREDERICK LASHLEY,

Appellant,

VS.

WILLIAM ARMONTROUT, WARDEN,

MISSOURI DEPARTMENT OF CORRECTIONS [SIC],

Appellee.

On Appeal from the United States District Court for the

Eastern District of Missouri, Eastern Division

The Honorable Edward L. Filippine, Judge

APPELLEE’S PETITION FOR REHEARING OR

REHEARING EN BANC

AND SUGGESTIONS IN SUPPORT THEREOF

WILLIAM L. WEBSTER

Attorney General

RONALD L. JURGESON

Assistant Attorney General

Missouri Bar No. 35431

Penntower Office Center

3100 Broadway, Suite 609

Kansas City, MO 64111

(816) 531-4207

Attorneys for Appellee

A-50

IN THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

FREDERICK LASHLEY,

Appellant,

)

)

)

)

VS. ) No. 90-1036EMSL

)

WILLIAM )

ARMONTROUT, )

WARDEN, )

)

)

Appellee.

PETITION FOR REHEARING OR, IN THE

ALTERNATIVE, PETITION FOR

REHEARING EN BANC

COMES NOW appellee, by and through counsel, pur-

suant to Federal Rules of Appellate Procedure 35 and 40 and

Eighth Circuit Rules 35A and 40A, and requests this Court to

grant rehearing or rehearing en banc in the above-styled case.

Appellee states the following:

l. The panel opinion in the above-styled case

conflicts with opinions of the United States Supreme Court in

Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma,

455 U.S. 104 (1982); Penry v. Lynaugh, 492 U.S. 302 (1989);

Walton v. Arizona, 110 S.Ct. 3047 (1990); and Estelle v.

McGuire, 112 S.Ct. 475 (1991). Rehearing or rehearing en

banc is necessary to maintain uniformity of this Court’s deci-

sions. Fed.R.App.P. 35(a)(1); Eighth Circuit Rule 35A(a).

A-51

2. The panel opinion is the above-styled case in-

volves questions of exceptional public importance since the

opinion improperly discounts and seemingly ignores the Mis-

souri Supreme Court’s good-faith, reasonable decision on this

issue, an issue primarily of state law. This significant issue

justifies rehearing or rehearing en banc. Fed.R.App.P. 35(a)(2);

Eighth Circuit Rule 35A(a).

SUGGESTIONS IN SUPPORT OF APPELLEE’S

PETITION FOR REHEARING

OR, IN THE ALTERNATIVE, PETITION FOR

REHEARING EN BANC

COMES NOW appellee, by and through counsel, and

states as follows in support of his petition for rehearing or

rehearing en banc in the above-styled cause.

The standard for granting a petition for a rehearing or

rehearing en banc is strict. See Powell v. National Football

League, 888 F.2d 559, 572 (8th Cir. 1990) (Lay, C.J., dissent-

ing). In this case, appellee believes that rehearing or rehearing

en banc is necessary due to the conflict between the majority

panel opinion as to Part H and case law previously announced

by this Court, other Circuit Courts of Appeal, and the United

States Supreme Court. Additionally, the panel’s conclusion

oversteps the bounds of a court sitting in federal habeas corpus

jurisdiction and undermines both the Congressional policy

defining federal habeas corpus actions and the Constitutional

consideration of federal-state comity underlying the applicable

statutes and rules. The decision of the panel majority in Part H

of this Court’s opinion presents an issue of exceptional impor-

tance worthy of rehearing or rehearing en banc. Fed.R.App.P.

35(a), 40; Eighth Circuit Rules 35A(a), 40A(a).

Appellant was convicted by a Missouri jury of capital

murder. The panel opinion in this case summarized the facts as

A-52

follows:

Lashley ‘‘brutally took the life of [a]

physically infirm woman, who for many years

had cared for and reared him, in order to rob

her.’’ State v. Lashley, 667 S.W.2d 712, 716

(Mo. [banc]), cert. denied, 469 U.S. 873 (1984).

Lashley broke into his foster mother’s home

while she was away, darkened the front room,

and lay in wait. When his foster mother re-

turned, he struck her over the head with a cast-

iron skillet, using enough force to break the

skillet into two pieces. She fell to the floor, and

a struggle ensued. Knowing his foster mother

had a soft spot in her skull, Lashley ended the

struggle by plunging a butcher knife into this

vulnerable area. He then stole $15 from his

foster mother’s purse, took the keys to her car,

and departed. Lashley’s foster mother died two

days later.

Lashley v. Armontrout, No. 90-1036EM (8th Cir. Mar. 4, 1992),

slip op. at 2 (hereinafter ‘‘Lash/ey’’). After a separte punish-

ment-phase hearing, the trial judge sentenced appellant to death

as per the jury’s recommendation. The Supreme Court of

Missouri affirmed appellant’s conviction and his sentence of

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

denied, 469 U.S. 873 (1984). Appellant, thereafter, unsuccess-

fully sought post-conviction relief in the sentencing court, the

Circuit Court of St. Louis City, Missouri. That court denied ap-

pellant relief and the denial was affirmed on appeal. Lashley v.

State, 721 S.W.2d 31 (Mo. App., E.D. 1986), cert. denied, 481

U.S. 1024 (1987).

After the denial of relief, appellant brought a federal

habeas corpus action in the United States District Court for the

A-53

Eastern District of Missouri, Eastern Division. The district

court rejected appellant’s request. On an appeal from the denial

of relief, a panel of this Court ruled that it was an error of

constitutional dimension for the Missouri circuit court to have

refused to give a mitigating-circumstance instruction requested

by appellant. The instruction requested would have told the

jury that the defendant ‘‘has no significant history of prior

criminal activity.’ §565.012.3(1), RSMo Cum.Supp. 1982.

Lashley, slip op. at 10-12. Two judges of the panel held that

Eighth Amendment principles, as defined in Lockett v. Ohio,

438 U.S. 586, 604 (1978), ‘obligated the Missoun trial court to

give the requested instruction, if it was warranted by the

evidence.’’ Lashley, slip op. at 11. The two-judge majority

went on to hold that under the facts of appellant’s case, the

evidence warranted the instruction. /d., at 11-12.

The decision of the two-judge majority is inconsistent

with the Supreme Court’s Eighth Amendment jurisprudence

and, additionally, fatally overlooks Missouri law governing the

procedures applied in this case. These serious errors by the

panel majority, as to Part H, should be re-examined by the panel

or by the Court en banc.

First, in its ruling, the Court appears to have inappropri-

ately blended Eighth Amendment concepts with Missouri pro-

cedural rules. The panel held:

Lockett makes it clear that the defendant

is not required to meet any particular burden of

proving a mitigating factor to any specific evi-

dentiary level before 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

A-54

as a mitigating circumstance. The trial judge’s

failure to give the requested instruction under

these circumstances violated the defendant’s

Eighth Amendment nights as expressed in Lock-

ett.

Lashley, slip op. at 11-12. To be sure, the Supreme Court in

Lockett held that

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 defen-

dant’s character or record and any of the circum-

stances 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). Lockett has by no means been the Supreme Court’s

last word on mitigating circumstances; it does not even address

the separate question of jury instructions. The panel’s failure

even to recognize the Supreme Court’s subsequent, more appli-

cable, decisions reflects an institutional or methodological flaw

in the panel’s opinion which, itself, justifies rehearing.

The requirement from Lockett, contrary to the panel’s

opinion, does not mandate instructing on a mitigating factor that

has not been supported by evidence presented by the defendant.

The Supreme Court has determined that the sentencer must be

allowed to consider and give effect to any mitigating evidence

presented by the defendant. See Penry v. Lynaugh, 109 S.Ct.

2934, 2947 (1989).

The Court, however, has expressly held that ‘‘ Lockett

does not hold that the State has no role in structuring or giving

A-55

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 (1990),

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

has also noted that ‘‘the Constitution does not require a State to

adopt specific standards for instructing the jury in its considera-

tion 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 opinion dissenting from Part

H, ‘*. .. the court mistakenly concludes Lockett obligated the

state trial judge to give Lashley’s requested mitigating circum-

stance instruction even though the record did not contain a shred

of evidence to support it.’’ Lashley, slip op. at 15 (Fagg, J.,

dissenting). Judge Fagg also correctly discussed the interplay

between Missouri’s procedural rules and the Eighth Amend-

ment dictates discussed by the United States Supreme Court in

Lockett, supra, Eddings v. Oklahoma, 455 U.S. 104(1982); and

' It would also appear that the holding of the panel in this case,

mandating submission of an instruction when no evidence was

presented to support the instruction, actually creates a ‘‘new

rule’’ of constitutional law which was applied retroactively to

appellant’s case without having first satisfying the test enunci-

ated in Teaque v. Lane, 489 U.S. 288 (1989). The result in this

case is not the same as that reached by the Supreme Court in

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

Supreme Court was confronted with a situation wherein the

criminal defendant had presented evidence to support the giv-

ing of the instructions refused by the trial court. Penry, 109

S.Ct. at 2947. To extend Penry (or the Court’s earlier Eighth

Amendment cases such as Lockett and Eddings) to include the

(footnote continued)

A-56

Penry v. Lynaugh, 492 U.S. 302 (1989). Rehearing or rehearing

en banc should be granted to consider that interplay.

By itself, the proposition that a sentencing jurisdiction

must allow a jury to consider a specific mitigating circumstance

does not dictate that the trial judge instruct the jury on that

specific circumstance. If that were the law, the trial judge

would have to instruct on every conceivable mitigating circum-

stance that was consistent with the evidence. But such a rule

inherently conflicts with its underlying principle. If the trial

judge must instruct on every operative circumstance in mitiga-

tion, this would limit the defendant’s nght to have circum-

stances considered to those which the judges, lawyers, and

legislators have agreed to ‘‘count.’’

Sentencing jurisdictions may require that mitigating

circumstance instructions be supported by some evidence.

Judge Fagg states the rule, correctly, as being that ‘‘[dJue

process requires that state trial courts give mitigating circum-

stance instructions only when the evidence warrants those

instructions.”’ In support of this rule he refers the reader to

Hopper v. Evans, 456 U.S. 605, 611 (1982). Lashley, slip op.

at 13-14. In Hopper, the Supreme Court addressed the analo-

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

pertinent part) that ‘‘due process requires that a lesser included

offense instruction be given on/y 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. It is not simply to be

required whenever doing so might result in a verdict other than

(footnote continued)

facts of this case clearly violates the precepts of Teague. This

is yet another reason rehearing or rehearing en banc should be

granted.

A-5S7

one of capital punishment.

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 Approved Instruction

on this issue (MAI-CR 2d 15.44) specifically authorizes sub-

mission of the instruction only ‘‘if there is evidence support-

ing’’ statutory mitigating circumstances or any mitigating cir-

cumstance or circumstances ‘‘authorized by law.’’ See MAI-

CR 2d 15.44, Notes on Use 3, 4. In deciding appellant's issue

on direct appeal, the Missouri Supreme Court found that there

was ‘‘no evidence to support the statutory mitigating circum-

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

Appellant was not prohibited from presenting any po-

tential mitigating evidence to the jury in this case. Instead,

appellant made a reasonable strategic decision to forego presen-

tation of that evidence and thereby alleviate any possible

evidence being presented by the prosecution involving, as

Judge Blackmar noted, ‘‘other felonies committed by the de-

fendant 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 appellant, however, does not violate the pre-

cepts of Lockett v. “-Aio, 438 U.S. at 604; see also Eddings v.

Oklahoma, 455 U.S. at 112; Penry v. Lynaugh, supra.

? In fact, Judge Blackmar, in an opinion concurring in part and

dissenting in part, went so far as to state, ‘*[t]here are indica-

tions in the record before us of other felonies committed by the

defendant while an adult, but these may not have been offered

into evidence during the trial.’’ State v. Lashley, 667 S.W.2d at

717 (Blackmar, J., concurring in part and dissenting in part).

This statement certainly indicates that had appellant attempted

to present evidence at the punishment phase that he had no

(footnote continued)

A-58

As the dissent correctly points out in discussing Part H,

the Supreme 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].’’ Lashely, slip op. at 14 (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). The opinion of the two-judge majority on this

issue should be reheard so as to take into consideration the State

of Missouri’s procedural requirements as they relate to the

Eighth Amendment principles upon which the majority pur-

ports to base its decision.

Additionally, appellee wonders if the holding of the

two-judge majority on Part H is one based upon principles of

federal constitutional law or is one improperly deciding an issue

of state law not within the province of a court sitting in habeas

corpus jurisdiction. Recently, the United States Supreme Court

has reaffirmed 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

(footnote continued)

significant history of prior criminal activity, the State would

have been able to rebut that evidence. The ‘‘blank slate’’

referred to by the panel was blank only because appellant

strategically decided it would be better to leave the slate blank

than cloud it with evidence of what the jury might consider as

aggravating factors instead of mitigating circumstances.

A-S9

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

By failing to give deference to the reasonable, good-

faith decision of the Missouri Supreme Court in considering this

allegation, the panel has incorrectly decided this issue. See

Brecht v. Abrahamson, 944 F.2d 1363, 1367 (7th Cir. 1991).

Just as in Brecht, the panel in this case has

substituted [their] assessment for that of the

Supreme Court of [Missouri]: [They] did not

say that its opinion is unreasoned or beyond the

bounds of dispute; [they] simply disagreed. That

is not an appropriate stance for a federal [court]

engaged in collateral review of a state convic-

tion. ‘‘[R]espect for a state court’s findings of

fact and application of its own law counsels

against the sort of de novo review undertaken’’

by the [panel in this case].

Brecht v. Abrahamson, 944 F.2d at 1367, quoting, Lewis v.

Jeffers, 110 S.Ct. at 3102.

The Supreme Court has recently granted certiorari re-

view ona case from the Fourth Circuit with the first question for

review being whether a federal court may grant collateral relief

merely because it disagrees with a good-faith, reasonable deci-

sion of a state court? See Wright v. West, 112 S.Ct. 656(1991),;

50 Crim.L.Rptr. 3109 (Dec. 18, 1991).’

As previously discussed, the Missour: Supreme Court

engaged in an extensive and reasonable discussion of this

allegation as it was presented on the direct appeal of his

judgment of conviction and sentence. State v. Lashley, 667

* A separate question was added by the Court to determine if the

federal court should give deference to the state court’s determi-

nation or if the court should review the issue de novo. Wright

v. West, 112 S.Ct. 672 (1991).

A-60

S.W.2d at 715-716.

Finally, even if the majority’s opinion were accurate

and even if it were true that the determination by the Supreme

Court of Missouri had no effect on this issue, the majority’s

analysis is incomplete as any error in refusing the instruction

has not deprived petitioner of due process and, stated otherwise,

would constitute harmless error beyond a reasonable doubt. See

Chapman v. California, 386 U.S. 18 (1967) (discussing the

harmless-beyond-a-reasonable doubt standard); Hamilton v.

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

U.S. 463 (1987 (discussing the fundamentally unfair standard

with relation to a due process violation). It has been held that

harmless-error analysis applies to Eighth Amendment chal-

lenges to penalty-phase jury instructions. See Demps v. Dug-

ger, 874 F.2d 1385 (8th Cir. 1989), cert. denied, 110 S.Ct. 1834

(1990); see generally Yates v. Evatt, 111 S.Ct. 1884 (1991)

(discussing harmlessness of burden-shifting instructions).

The Supreme Court has repeatedly recognized that in

reviewing jury instructions, a single incident may not be re-

vived 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

* 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). Appellant

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. The reasonable,

good-faith decision of the Supreme Court of Missouri should be

given deference in this Court.

A-61

the defendant at the time of the offense as a mitigating circum-

stance, the jury was also instructed that they could consider

‘*any circumstances’’ which were found from the evidence ‘‘in

extenuation or mitigation of punishment’’ (Appellee’s District

Court Exhibit B at pp. 81, 82). 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.

(Exh.B, pp. 83-84). 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. pending, No. 91-7186 (U.S.); 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 appellant’s case was

given the opportunity to consider and give effect to any factor

they felt would have mitigated punishment in this case.

If this ‘blank slate’’ is so significant that it is evidence

for the purpose of satisfying the panel’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 circum-

stances’’ found from the evidence. For the very reason the

panel 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--i.e., the substantive salience of the ab-

sence of serious prior criminal activity--the jury may not

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

A-62

the panel’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 panel leaps to

the result that the trial court had to instruct on this specific

mitigating circumstance, in addition to giving the more inclu-

sive mitigating-circumstance instruction and the life-option in-

struction. What the panel would establish 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 such evidence to the

jury.

At page 11 of the slip opinion, the panel identifies, by

indirection, what is has actually done: It is seeking to enforce

its view of Missouri law--specifically, the instructions that

Missouri law requires the trial judge to give--even though the

Missouri Supreme Court took a different position. This Court

has made clear, however, that ‘‘[Missouri 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).

Any error in the trial court’s failure to submit the

requested instruction was harmless error beyond a reasonable

doubt. The majority’s opinion has missed the mark with respect

to Part H. This Court should grant rehearing or rehearing en

banc.

REQUIRED STATEMENT

I express a belief, based on a reasoned and studied pro-

fessional judgment, that the decision is contrary to the follow-

ing decisions of the Supreme Court of the United States, and

that consideration by the full court is necessary to secure and

maintain uniformity of decisions in this Court: Lockett v. Ohio,

438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104

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

Arizona, 110 S.Ct. 3047 (1990).

A-63

Further, | express a belief, based on a reasoned and

studied professional judgment, that this appeal raises the fol-

lowing questions of exceptional importance:

(1) Whether the Eighth Amendment requires submis-

sion of a mitigating-circumstance instruction when the record

before the finder of fact is completely devoid of evidence to

support such an instruction?

(2) Whether Missouri’s procedural rule requiring a

capital defendant to bear the risk of nonpersuasion as to the

existence of mitigating circumstances comports with constitu-

tional standards?

(3) Whether the State is required to rebut a non-existent

presumption that a ‘‘blank slate’’ supports submission of a

mitigating circumstance instruction on a defendant having no

significant history of prior criminal activity?

CERTIFICATE OF SERVICE Respectfully Submitted,

I hereby certify that a WILLIAM L. WEBSTER

true and correct copy of Attorney General

the foregoing was mailed,

postage prepaid, this | 6th

day of March, 1992, to:

RONALD L. JURGESON

Assistant Attorney General

Missouri Bar No. 35431

Mr. H. William Brown

Brown, Miller & Sheehan

117 N. Kirkwood, Ste. 200

Kirkwood, MO 63122 Penntower Office Center

3100 Broadway, Suite 609

Kansas City, MO 64111

(816) 531 4207

Ronald L. Jurgeson Attorneys for Respondent.

A-64

PETITION UNDER 28 USC § 2254 FOR WRIT OF

HABEAS CORPUS BY A PERSON IN STATE CUSTODY

UNITED STATES District: Eastern District

DISTRICT COURT of Missouri

Name: Frederick Lashley Prisoner No.: CP 16

Case No. 87-0897-C-2

Place of Confinement: Death Row

Missouri State Penitentiary

Jefferson City, MO 65101

Name of Petitioner (include name under which convicted)

Frederick Lashley

Name of Respondent (authorized person having custody of

petitioner)

William Armontrout

Warden Missouri Department of Corrections

Jefferson City, MO 65101

The Attorney General of the State of: Missouri

PETITION

l. Name and location of court which entered the judgment

of conviction under attack: Circuit Court of the City of St.

Louis, St. Louis, Missouri

y Date of judgment of conviction: April 26, 1982

A-65

3. Length of sentence: Death

4. Nature of offense involved (all counts): Capital Murder

5. What was your plea (Check one)

(a) Not guilty X

(b) Guilty

(c) Nolo contendere

If you entered a guilty plea to one count or indictment,

and a not guilty plea to another count or indictment, give details:

N/A

6. If you pleaded guilty, what kind of trial did you have?

(Check one)

(a) Jury X

(b) Judge only

7. Did you testify at the trial?

Yes. NoxX

8. Did you appeal from the judgment of conviction?

Yes X No

9. If you did appeal, answer the following:

(a) Name of court: Missouri Supreme Court

(b) Result: Conviction Affirmed

(c) Date of result and citation, if known: March 20,

1984, State v. Lashley, 677 S.W.2d 712 (Mo banc 1984)

(d) Grounds raised: Trial court erred in admitting

hammer into evidence; trial court erred in overruling the chal-

lenge to death qualification voir dire question; trial court erred

in not accepting original punishment verdict as an acquittal;

disproportionate punishment; failure to submit mitigating

circumstances.

A-66

(e) If you sought further review of the decision on

appeal by a higher state court, please answer the following:

(1) Name of court - n/a

(2) Result - n/a

(3) Date of result and citation if known - n/a

(4) Grounds raised - n/a

(f) If you filed a petition for certiorari in the United

Supreme Court, please answer the following with respect to

each direct appeal:

(1) Name of court - Missouri Supreme Court

(2) Result - Certiorari Denied.

(3) Date of result and citation, if known - Not known

(4) Grounds raised: Double jeopardy; violation of due

process in that juvenile record was used against petitioner -- no

aggravating circumstance was found beyond a reasonable doubt

by jury; cruel and unusual punishment to impose death penalty.

10. Other than a direct appeal from the judgment of

conviction and sentence, have you previously filed any peti-

tions, applications, or motions with respect to this judgment in

any court, state or federal?

Yes X No

11. If your answer to 10 was ‘‘yes,’’ give the fol-

lowing information:

(a) (1) Name of court: Circuit Court of the

City of St. Louis, St. Louis, Missouri

(2)Nature of proceeding: Motion pursuant to

Missouri Supreme Court Rule 27.26 to set aside

or vacate judgment and sentence

(3) Grounds raised: Ineffective assistance of

counsel; violation of U.S. Constitution to exe-

cute a person who had not reached the age of

A-67

majority at the time of offense; State did not

present evidence of any premeditation or delib-

eration as required by Missouri law.

(4) Did you receive an evidentiary hearing on

your petition, application or motion?

Yes X No.

(S) Result: Petition denied - Lashley v. State,

721 S.W.2d 31 (Mo.App., E.D. 1986)

(6) Date of result: Affirmed by Missouri Court

of Appeals, E.D. October 14, 1986

(b) As to any second petition, application or motion

give the same information:

(1) Name of court - n/a ;

(2) Nature of proceeding - n/a

(3) Grounds raised - n/a

(4) Did you receive an evidentiary hearing on your

petition, application or motion?

Yes. No___

(5) Result - n/a

(6) Date of Result - n/a

(c) Did you appeal to the highest state court having

jurisdiction the result of action taken on any petition, applica-

tion or motion?

(1) First petition, etc. Yes X No__ Application for

transfer to Missouri Supreme Court denied. Order entered

January 13, 1987.

A-68

(2) Second petition, etc Yes No

(d) If you did not appeal from the adverse action on any

petition, application or motion, explain briefly why you did not:

n/a

12. State concisely every ground on which you claim that you

are being held unlawfully. Summarize briefly the facts support-

ing each ground. If necessary, you may attach pages stating

additional grounds and facts supporting same.

CAUTION: Inorder to proceed in the federal court, you

must ordinarily first exhaust your available state court reme-

dies as to each ground on which you request action by the

federal court. If you fail to set forth all grounds in this petition,

you may be barred from presenting additional grounds at a

later date.

For your information, the following is a list of the most

frequently raised grounds for relief in habeas corpus proceed-

ings. Each statement preceded by a letter constitutes a separate

ground for possible relief. You may raise any grounds which

you may have other than those listed if you have exhausted your

state court remedies with respect to them. However, you should

raise in this petition all available grounds (relating to this

conviction) on which you base your allegations that you are

being held in custody unlawfully.

Do not check any of these listed grounds. If you select

one or more of these grounds for relief, you must allege facts.

The petition will be returned to you if you merely check (a)

through (j) or any one of these grounds.

(a) Conviction obtained by plea of guilty which was

unlawfully induced or not made voluntarily with under-

A-69

standing of the nature of the charge and the conse-

quences of the plea.

(b)Conviction obtained by use of coerced confession.

(c)Conviction obtained by use of evidence gained pur-

suant to an unconstitutional search and seizure.

(d)Conviction obtained by use of evidence obtained

pursuant to an unlawful arrest.

‘e)Conviction obtained by a violation of the privilege

against self-incrimination.

(f)Conviction obtained by the unconstitutional failure

of the prosecution to disclose to the defendant evidence

favorable to the defendant.

(g)Conviction obtained by a violation of the protection

against double jeopardy.

(h)Conviction obtained by action of a grand or petit jury

which was unconstitutionally selected and impaneled.

(i)Denial of effective assistance of counsel.

(j)Denial of right of appeal.

A. Ground one: Petitioner was denied his rights under the 8th

and 14th Amendments of the United States Constitution to be

free of cruel and unusual punishment in that the United States

Constitution prohibits the execution of a person who had not

reached the age of majority at the time of the offense.

Supporting FACTS (state briefly without citing cases or

law) Petitioner had just turned seventeen (17) years of age when

the crime for which he was charged occurred. Petitioner was

sentenced to death for said crime.

B. Ground two: Petitioner was denied effective assistance

of counsel in violation of his 6th and 14th Amendments [sic]

right under the United States Constitution in that Petitioner’s

trial attorneys failed to investigate and present the defense of

diminished capacity.

A-70

Supporting FACTS (state briefly without citing cases

or law): Section 562.076, RSMo, at the time of Petitioner’ s trial

provided that a person who was in an intoxicated or drugged

condition at the time of the offense was not criminally respon-

sible if said intoxication negated the mental state of purpose or

knowledge. Petitioner at the time of the offense was acting

under the influence of P.C.P. Petitioner, Douglas Anderson,

and Dianne Hurst were witnesses available at the time of

Petitioner’s trial to testify in regard to his intoxication by P.C.P.

Dr. Parwartikar and Dr. Armour were available to testify that

P.C.P. impairs a person’s ability to reason and formulate intent.

Petitioner’s trial attorneys called none of the available wit-

nesses at his trial; nor did they request jury instructions in regard

to said defense.

ol Ground three: Petitioner was denied effective assis-

tance of counsel in violation of his 6th and 14th Amendment

rights of the United States Constitution in that his trial attorneys

failed to present statutory mitigating evidence during the pen-

alty phase of the trial.

Supporting FACTS (state briefly without citing cases or

law): At the time of Petitioner’s trial Section 565.062(3)(6),

RSMo, provided that the statutory mitigating circumstance that

the capacity of the defendant to appreciate the criminality of his

conduct or to conform his conduct to the requirement of the law

was substantially impaired could be submitted to the jury if

supported by the evidence. At the time of petitioner’s trial, Dr.

Parwartikar was available to testify that Petitioner was between

borderline and dull normal range of intelligence and that the

effects of P.C.P. on Petitioner’s ability to conform his conduct

to the requirements of the law was impaired. Petitioner’s

attorneys failed to present said evidence and failed to request

said mitigating circumstance be submitted to the jury.

A-71

D. Ground four: Petitioner was denied his right to effective

assistance of counsel as guaranteed by the 6th and 14th Amend-

ments to the United State Constitution in that his trial attorneys

failed to present evidence to support the statutory mitigating

circumstance that Petitioner had no significant history of prior

criminal activity.

Supporting FACTS (state briefly without citing cases or

law). Section 565.012(3)(1), RSMo, provided that the mitigat-

ing circumstance that the accused had no significant history of

criminal activity could be submitted to the jury during the

sentencing phase of the trial. Petitioner had no criminal

convictions and could have testified during the trial. Petitioner

had no criminal convictions and could have testified during the

trial. His trial attorneys would thus have been able to submit to

the jury the statutory mitigating circumstance of no significant

prior criminal activity. His attorneys failed to present any

evidence which would have allowed them to receive said jury

instruction.

(ADDITIONAL GROUNDS BEGINNING PAGE 8 AT-

TACHED HERETO)

13. ‘If any of the grounds listed in 12A, B, C, and D were not

previously presented in any other court, state or federal, state

briefly what grounds were not so presented, and give your

reasons for not presenting them: N/A

14. Do you have any petition or appeal now pending in any

court, either state or federal, as to the judgment under attack’

Yes No X

15. | Give the name and address, if known, of each attorney

A-72

who represented you in the following stages of the judgment

attacked herein:

(a) At preliminary hearing: n/a

(b) At arraignment and plea: Kevin Curran, Erica Leis-

ering, Office of Public Defender, 1320 Market St., St. Louis,

MO, 63103 (314) 622-4241

(c) At trial: Kevin Curran, Erica Leisering, Office of

Public Defender, 1320 Market Street, St. Louis, MO, 63103

(314) 622-4241

(d) | Atsentencing: Kevin Curran, Erica Leisering, Office of

Public Defender, 1320 Market St., St. Louis, MO 63103 (314)

622-4241

(e) On appeal: Henry Robertson, Office of Public De-

fender, 1320 Market St., St. Louis, MO 63103 (314) 622-4241

(f) In any post-conviction proceeding: Stormy B. White,

Office of Public Defender St. Louis County, Clayton, Mo

63105 (314) 889-2778

(g) | Onappeal form any adverse ruling in a post-conviction

proceeding: Stormy B. White, Office of Public Defender, St.

Louis County, Clayton, MO 63105 (314) 889-2778

16. Were you sentenced on more than one count of an

indictment, or on more than one indictment, in the same court

and at the same time?

Yes No X

17. Do you have any future sentence to serve after you

complete the sentence imposed by the judgment under attack?

Yes. NoX

(a) If so, give name and location of court which

A-73

imposed sentence to be served in the future: n/a

(b) Give date and length of the above sentence: n/a

(c) Have you filed, or do you contemplate filing,

any petition attacking the judgment which imposed the sentence

to be served in the future?

Yes No

Wherefore, petitioner prays that the Court grant peti-

tioner relief to which he may be entitled in this proceeding.

Signature of Attorney (if any)

I declare under penalty of perjury that the foregoing is true and

correct. Executed on

(date)

/s/ Frederick Lashley

Signature of Petitioner

E. Ground five: Petitioner was denied his right to effective

assistance of counsel, due process, and equal protection of the

laws as guaranteed by the United States Constitution when the

state court failed to permit his attorney to withdraw when there

was a conflict of interest.

SUPPORTING FACTS: Petitioner was represented on

the charge of capital murder by two attorneys from the

Public Defender Office of the City of St. Louis, Mis-

souri. Missouri Supreme Court Rule 27.26 provides

that a judgment and sentence may be attacked and set

aside and that counsel will be appointed for indigent

persons. Denial of effective assistance of counsel is a

A-74

ground for setting aside a conviction. Petitioner, in his

27.26 motion, alleged that his public defenders were

ineffective in his representation. The court appointed

an attorney from the St. Louis County Public Defender

Office to represent Petitioner on his 27.26 proceeding.

All public defenders involved were employed by the

same employer, worked together on mutual clients; and,

in fact, petitioner's trial attorneys had participated in

the training of the attorney appointed to represent Peti-

tioner in his 27.26 proceeding. A clear conflict of

interest existed in Petitioner’s county public defender

alleging and proving his trial attorney’s ineffectiveness.

F.Ground six: Petitioner was denied his right to effective

assistance of counsel as guaranteed by the 6th and 14th Amend-

ments to the United States Constitution when his attorneys

failed to introduce evidence of the statutory mitigating circum-

stance that the felony was committed under the influence of

extreme mental or emotional disturbance.

SUPPORTING FACTS: Section 565.012(3)2) RSMo

provided that a statutory mitigating circumstance to be

given to the jury if supported by the evidence was that

the capital felony occurred while the defendant was

under the influence of extreme mental or emotional

disturbance. At the time of the homicide, Petitioner was

a seventeen (17) year old youth, living in the street,

addicted to drugs, and no means to buy food or clothing.

Petitioner’s trial attorneys failed to presented evidence

of Petitioner’s extreme emotional disturbance to the

jury and failed to request the statutory mitigating circum-

stance.

G.Ground seven: Petitioner was denied his rights to due process

and equal protection as guaranteed by the United States

Constitution when the trial court refused to submit to the jury

A-75

the statutory mitigating circumstance of the fact Petitioner had

no significant history of prior criminal activity.

SUPPORTING FACTS: Petitioner at the time of the

offense had just turned seventeen years of age and had

no criminal convictions. The state at no time presented

any evidence of criminal activity. The trial court,

however, refused to submit the statutory mitigating

circumstance to the jury that Petitioner had no signifi-

cant history of criminal activity as provided by Section

$65.012(3)(1), RSMo.

H.Ground eight: Petitioner was denied his rights of due

process, equal protection, right to trial by jury, and rights

against double jeopardy as guaranteed by the United States

Constitution.

SUPPORTING FACTS: Section 565, RSMo, provides

that to impose the death penalty, the jury must find the

state has proved an aggravating circumstance beyond a

reasonable doubt. After deliberating nearly four hours

on the issue of punishment, the jury returned fixing the

punishment at death and finding, ‘‘There was no

evidence to disprove the fact that he entered the house

for the reason of obtaining money.’’ The trial court sent

the jury back to put their verdict in proper form and

denied Petitioner’s motion for judgment of acquittal on

the death penalty or for a mistrial on the issue of

punishment.

1.Ground nine: Petitioner was denied his rights of due process

and equal protection of the law and his mght to confront

witnesses against him as guaranteed by the United States

Constitution when the State Court used petitioner’s juvenile

record against him.

SUPPORTING FACTS: The Missouri Supreme Court

reviews all death sentences as required by Section

A-76

565.014 RSMo. Missouri law provides that evidence,

records and reports of juvenile courts shall not be used

in any matter whatsoever except in juvenile court,

Section 211.271(3) RSMo. However, the Missouri

Court used petitioner's juvenile record to affirm the

death penalty.

J].Ground ten: Petitioner was denied his right to a fair and

impartial jury when the State was allowed to introduce evidence

whose only purpose was to inflame the jury and cause petitioner

to be convicted on an improper basis.

SUPPORTING FACTS: Over the objection of peti-

tioner, the State was allowed to introduce a hammer into

evidence that was entirely unconnected with any injury

to victim. Said evidence inflamed the jury and caused

them to speculate that petitioner used it and the offense

was more heinous and deliberate than the proper evi-

dence showed.

K.Ground eleven: Petitioner has been denied his rights of due

process and equal protection of the law as guaranteed by the

United States Constitution in that the imposition of the death

penalty in petitioner's case is totally disproportionate to other

cases in which the death penalty was not imposed.

SUPPORTING FACTS: At the time of petitioner's

offense he was a seventeen year old black youth with no

criminal convictions. There was no showing that the

victim suffered in any unusual way or was tortured. The

State of Missouri routinely waives the death sentence or

amends the charge to a lesser included offense of capital

murder.

L.Ground twelve: Petitioner was denied his mghts to due

process and equal protection of the law as guaranteed by the

United States Constitution in that the State obtained a convic-

A-77

tion for capital murder without proving an essential element of

the charge.

SUPPORTING FACTS: Petitioner went into victim’s

apartment without a weapon with no intent to kill

anyone. The State introduced no evidence of any intent

to kill, no evidence of premeditation or deliberation on

the part of petitioner when he caused the death of the

victim.

M.Ground thirteen: Petitioner was denied his rights of due

process and equal protection as guaranteed by the United States

Constitution when the state was allowed to improperly death

qualify the jury panel.

SUPPORTING FACTS: During voir dire of petitioner's

jury panel, the state was allowed to pick up a conviction

prone jury by eliminating for cause those individuals

who would not impose the death penalty. In addition,

the state was improperly permitted to imply to the jury

that they could impose the death penalty without

finding a statutory aggravating circumstance beyond a

reasonable doubt. As a result, the jury in petitioner's

cause imposed the death penalty without finding a

statutory aggravating circumstances beyond a reason-

able doubt. Said aggravating circumstance was put on

the record only at the direction of the trial judge.

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REVISED STATUTES OF MISSOURI

1982 SUPPLEMENT

565.012. Evidence to be considered in assessing

punishment in capital murder cases.-

1. In all cases of capital murder for which the death penalty is

authorized, the judge shall consider, or he shall include in his

instructions to the jury for it to consider:

(1) Any of the statutory aggravating circumstances

enumerated in subsection 2 which may be supported by the

evidence;

(2) Any of the statutory mitigating circumstances

enumerated in subsection 3 which may be supported by the

evidence;

(3) Any mitigating or aggravating circumstances other-

wise authorized by law; and

(4) Whether a sufficient aggravating circumstance or

circumstances exist to warrant the imposition of death or

whether a sufficient mitigating circumstance or circumstances

exist which outweigh the aggravating circumstance or circum-

stances found to exist.

2. Statutory aggravating circumstances shall be limited to the

following:

(1) The offense was committed by a person with a prior

record of conviction for capital murder, or the offense was

committed by a person who has a substantial history of serious

assaultive criminal convictions;

A-79

(2) The offense was committed while the offender was

engaged in the commission of another capital murder;

(3) The offender by his act of capital murder knowingly

created a great risk of death to more than one person in a public

place by means of a weapon or device which would normally be

hazardous to the lives of more than one person;

(4) The offender committed the offense of capital

murder for himself or another, for the purpose of receiving

money or any other thing of monetary value;

(5) The capital murder was committed against a judicial

officer, former judicial officer, prosecuting attorney or former

prosecuting attorney, circuit attorney or former circuit attorney,

elected official or former elected official during or because of

the exercise of his official duty;

(6) The offender caused or directed another to commit

capital murder or committed capital murder as an agent or

employee of another person;

(7) The offense was outrageously or wantonly vile,

horrible or inhuman in that it involved torture, or depravity of

mind;

(8) The capital murder was committed against any

peace officer, corrections employee, or fireman while engaged

in the performance of his official duty;

(9) The capital murder was committed by a person in,

or who has escaped from, the lawful custody of a peace officer

or place of lawful confinement;

(10) The capital murder was committed for the purpose

A-80

of avoiding, interfering with, or preventing a lawful arrest or

custody in a place of lawful confinement, of himself or another;

(11) The capital murder was committed while the defen-

dant was engaged in the perpetration or in the attempt to

perpetrate the felony of rape or forcible rape or the felony of

sodomy or forcible sodomy;

(12) The capital murder was committed by the defen-

dant for the purpose of preventing the person killed from

testifying in any judicial proceeding.

3. Statutory mitigating circumstances shall include the follow-

ing:

(1) The defendant has no significant history of prior

criminal activity;

(2) The capital felony was committed while the defen-

dant was under the influence of extreme mental or emotional

disturbance;

(3) The victim was a participant in the defendant’s

conduct or consented to the act;

(4) The defendant was an accomplice in the capital

felony committed by another person and his participation was

relatively minor;

(5) The defendant acted under extreme duress or under

the substantial domination of another person;

(6) The capacity of the defendant to appreciate the

criminality of his conduct or to conform his conduct to the

requirements of law was substantially impaired;

A-81

(7) The age of the defendant at the time of the crime.

4. The statutory instructions as determined by the trial judge to

be warranted by the evidence shall be given in charge and in

writing to the jury for its deliberation. The jury, if its verdict is

a recommendation of death, shall designate in writing, signed

by the foreman of the jury, the aggravating circumstance or

circumstances which it found beyond a reasonable doubt.

5. Unless at least one of the statutory aggravating circumstances

enumerated in this section is so found, the death penalty shall

not be imposed.

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PRE-TRIAL CONFERENCE ON

PUNISHMENT PHASE

THE COURT: That will be overruled. Is that it?

MR. CURRAN: I think we have to discuss the question

of the juvenile record if it is admissible and how it is.

THE COURT: Let me give you notes on this. I have

heard you fellows talk about this and what have you. Until some

strange things have occur(rJed in the law, unless some strange

things occur[r]ed in the law it is always, has been the common

law rule that in order to submit a case to the jury or to argue the

case to the jury there has to be basis in the record and an

evidentiary basis in the record. Now Mr. Bauer says he is not

going to have any evidence concerning this defendant's prior

criminal activity...

MISS LEISENRING: You are aware and so is Mr.

Bauer that I intend to call several witnesses including some

people who have known the defendant during the course of his

life?

' MR. BAUER: I don’t know who you are going to call.

You gave the list to the investigator. | haven’t seen it yet.

MISS LEISENRING: | assume you and your investiga-

tor are in communication with one another.

MR. BAUER: No one to my knowledge has been

endorsed in the court file. I think they should have been.

MISS LEISENRING: You indicated to me this Mon-

day you had no objection.

MR. BAUER: That is what | am saying now no one Is

endorsed. I tell youl don’t know you are going to call. Youmay

have given the list to my investigator.

MISS LEISENRING: I gave him a list. Included are

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two persons, mother and son familiar with the defendant that

have known him during the course of his youth, childhood and

youth and while I will tell you honestly that I don’t think they

could give you a recital of his juvenile record I believe they are

aware he has been arrested. | don’t think they could give you the

specifics. He has not been a member of their household as Mr.

Bauer has brought on this boy was raised by Janie Tracy. The

lady is named Juanita Morgan and is the common law wife to

Fred Lashiey’s father. Her contacts with the defendant has been

when he was a tiny baby she kept him 6 months on weekends

sometimes. Janie Tracy let the defendant come over and visit.

She was aware there have been difficulties he went to Boon-

ville. She can’t tell you why exactly. He got into some trouble.

That would be the basis for the prosecutor introducing that

evidence. That is what I am anticipating he could ask these

witnesses. I am not going to ask them about his juvenile record

and | am at this time making a motion in limine that the State be

prohibited from introducing evidence or eliciting evidence of

Fredereick [sic] Lashley’s juvenile record through these wit-

nesses, Juanita Morgan, her son, who roughly appears a year or

two older than Fred Lashley.

MR. BAUER: My reasons and | think this is what the

Court was getting to if do not present any evidence of any prior

criminal history then I don’t think I am entitled to introduction

of aggravating circumstances on this basis. By the same token

if these people testify that the defendant has no prior history

then I think the defense would have a basis for an instruction

that is the reason for mitigating circumstances. If they are asked

that question I have the right to cross examine them, if they were

aware of some of the tings [sic] he had done which would

involve criminal activity and we would probably end up in the

middle somewhere I don’t think either one of us are...

A-84

MISS LEISENRING: I am not going to ask these

witnesses that question which is, are you aware of any type of

criminal record the defendant might have.

MR. BAUER: Or criminal activity?

MR. [sic] LEISENRING: I will ask Wardell, what was

he like around you, how did you and he relate, what was your

behavior and you know what he is going to say things like we

played together childhood games whatever.

MR. BAUER: Okay. My response is without it is my

contention without any evidence there is no significant criminal

history. The defense is not entitled to instruct on mitigating

circumstances that he has no criminal history there being no

evidence to support it.

THE COURT: Sounds reasonable.

MISS LEISENRING: Perhaps we should cross one

bridge at atime. The first bridge being crossed when we present

the evidence. After we have presented the evidence then the

Judge would be in a position to determine whether or not this is

more than one mitigating circumstance which the Court believe

[sic] that we could plead in order to get to that stage I am asking

for a ruling from the Court at this time based on what I have

candidly told the prosecutor I intend my examination of these

witnesses to be. I am not hedging anything. I want a ruling in

advance that the State be prohibited from introducing evidence

from my witnesses concerning the juvenile as to, are you aware

he was arrested, went to juvenile home, he stole, robbed, raped

or arson.

MR. BAUER: | am willing to do that under the

understanding that the rules of evidence if they open the door by

asking the reverse questions, does he have any...

MISS LEISENRING: I'm telling you I am not doing

that.

A-85

MR. BAUER: You want a ruling in advance. | don’t

think he can do that. I am not intending to ask these people don’t

mention it to them if you ask them something else opens the

door then I’m going to walk in there. I am not intending without

the door being open to do that.

THE COURT: You have to go a little bit more into this

than just the question of prior criminal activity because an

extension of that is in my judgment if you ask these witnesses

is Fred a good boy, then I’m going to have some problems...

MISS LEISENRING: | didn’t plan to ask that question.

Let me look at my questions. You know, I’m not dealing with

professional witnesses. These are lay people.

THE COURT: I am saying this. You can’t have your

cake and eat it too. If you are going to try to prove by these

witnesses that this defendant is a good man with prior criminal

problems and this is the first problem with the law, when in fact

it is not, I have got problems with your proposition.

MISS LEISENRING: The only way I ever imagine it

happens is the example you say he is a good boy. If! were to

say do you love this child, do you like him, and she were to say

he is a good boy that is not what I am trying to get out.

MR. BAUER: | understand that. If you ask them first

of all you could tell them you know, if I ask you do you love him

and the answer is yes that might eliminate some of the problem

if you don’t ask questions. I don’t want to be unreasonable but

if the door is opened I’m going to walk in it.

THE COURT: That is fair.

MR. BAUER: | will tell you if I think the door has been

opened. I won’t do something like that. Do you love him. Yes.

He is a good boy.

MISS LEISENRING: The other question to Wardell is

something to the effect, how did he behave when he was around

A-86

you.

MR. BAUER: That is fine.

THE COURT: No problem.

MR. BAUER: Unless Wardell mentions some criminal

activity they did.

MR. CURRAN: The thrust of her things are of a

personal nature ! don’t think it will be making any broadbased

community statement, but what they felt about him through

their relationship with him.

MR. BAUER: I would make a motion in limine that the

witnesses not be permitted to testify they don’t think he should

get the death penalty or in their opinion he shouldn't get the

death penalty. That is a form of argument rather than the facts

and invades the province of the jury.

THE COURT: Susta:ned.

MISS LEISENRING: Are you asking this jury to spare

his life.

THE COURT: You can do that.

MR. BAUER: You can do that.

MISS LEISENRING: Or, do you want him to live?

MR. BAUER: Sure you can ask that.

THE COURT: Where do we stand at this point?

MR. BAUER: Will you visit him in the penitentiary”

(Discussion is had off the record)

. . .

MISS LEISENRING: Continuing in the discussion that

we engaged in earlier today regarding mitigating circumstances

we discussed at length the defense position and at the prior

record | admitted and indicated to Mr. Bauer the type of

questions I would ask from the witness. He knows | am not

going to ask them whether or not the defendant had a record. In

view of what! anticipate the testimony of both parties will result

A-87

in that is a lack of any evidence regarding the defendant's

juvenile background or arrest as an adult that we should be

allowed to offer that as mitigating circumstances. Specifically

there is no significant history of prior criminal activities. He is

only 17 which is adulthood in the eyes of criminal justice

system.

MR. BAUER: We have gone over this before and my

understanding was that the Court ruling unless there is any

evidence to submit that instruction it won't be submitted. We

have discussed it before.

THE COURT: I have the same feeling.

MISS LEISENRING: We do not have physically in the

hands of the court an instructions [sic] that would include no

significant history of prior criminal activity as additional miti-

gating circumstances. | realize in order to preserve the record

we must present this to the Court consistent with the court’s

ruling I expect the court to label that Defendant’s Instruction C.

Upon the court’s receipt and it will be within the next few hours

| assume the State has no objection to the fact it is not physicaily

in our hands.

MR. BAUER: No objection.

(Discussion is had off the record)

MR. BAUER: I was going out, for the record, after

lunch or now in a second after the instruction conference, due

to the fact that the State has voluntarily deleted one of the

aggravating circumstances, i.¢., torture or depravity of mind,

from the aggravating circumstances being submitted to the jury,

therefore, the instructions of the Court needed to be altered or

changed to conform. One of the changes was that the instruc-

tion which is A was a definitional instruction of torture or

depravity of mind, has been omitted. The instructions follow-

ing that instruction have been renumbered and the language has

A-88

been changed from the singular to the plural. | will indicate for

the record that the Court handed me the instructions of the Court

and that Instructions 15, 16, and 17 which will be given prior to

evidence being introduced have not been changed and that

Instruction 18 has not been changed which is after evidence and

before argument. This is the argument of counsel that Ins{t}ruction

19, MAI 15.38; Instruction Number 20 is MAI 15.40 which

now has only one aggravating circumstance in the instruction

number 21 is now MAI 15.42, Instruction 22 is MAI 15.44

submitted by the defendant, Instruction 23 is MAI 15.46 and

Instruction 24, is 15.48 and I think the appropriate verdict forms

which we have gone over before.

MR. CURRAN: The other mitigating circumstances |

just need.

MR. BAUER: I have reviewed the instructions and |

have no objections to them. | think they are correct.

(Discussion off the record)

MR. CURRAN: Your Honor, in light of the argument

made by co counsel Miss Leisenring | am submitting to the

Court an instruction which I refer to as Defendan’ts [sic] C-1.

That is MAI 15.44 modified which is mentioning the mitigating

circumstances that the defendant has no significant history of

prior criminal activity and Miss Leisenring discussed with the

Court and also mentions the reasonable doubt burden.

THE COURT: They are all denied and refused.

MR. CURRAN: I will also submit C-2 which comports

with what MAI says it should be and mentions the no significant

prior criminal history.

THE COURT: Instruction 16, it is in there. I am going

to put it in...

MR. BAUER: 16?

THE COURT: Yes. 16.

A-89

THE COURT: I am going to have to make some

changes however if she chooses to do so.

MR. CURRAN: The second one.

THE COURT: She may make an opening statement or

she may reserve her opening statement.

MR. BAUER: Okay.

(Proceedings leave chambers at 2:10 p.m. Court recon-

venes at 2:30 with jury and defendant present)

THE COURT: Ladies and gentlemen, the Court and the

attorneys have been engaged in conferences the live long day up

until now on matters pertaining to this case. The Court will now

read to you some instructions of the law.

(The Court reads Instructions to the jury starting with

Instruction No. 15 through 17.)

THE COURT: Ladies and gentlemen of the jury those

are the instructions. At this time counsel for the State may

proceed.

(Trial Transcript pages 689, 709-716, 725-729)

A-90

CLOSING ARGUMENT OF THE STATE

MR. BAUER: Thank you, your Honor. May I have the

Court’s instructions?

THE COURT: Yes, you may. Just one moment, please.

MR. BAUER: Certainly. I want those that are going to

be read.

THE COURT: Would you step up here, please.

(Discussion at the Bench as follows:)

THE COURT: Mention was made to me that another

judge on the bench allowed the counsel to argue the instructions

to the yury. | am having a problem with it, I don’t see it now, oh,

there it is, if you read the instructions to the jury they are not the

court’s instructions.

MR. BAUER: I am going to refer to the instructions to

argue the case to the jury obviously...

MISS LEISENRING: I would like to interrupt that that

is the defense position also.

THE COURT: I think that we can take care of this by

telling the jury these are instructions we anticipate will be given

to them.

MISS LEISENRING: No problem.

THE COURT: Very well.

(Discussion leaves the Bench)

THE COURT: Counsel for the State has 20 minutes to

argue the case to the jury with a two minute warning. Counsel

for the defendant has 20 minutes with a two minute warning.

You may proceed.

MR. BAUER: Thank you, your Honor. Ladies and

gentlemen as the judge has just told you there will be this time

for my final opportunity to talk to you regarding this matter.

Miss Leinsenring [sic] is going to have an opportunity to discuss

A-91

it with you also. As I told some of you in voir dire these

instructions are a little different than the instructions you

received in the first part of that trial. At this point you have

found the defendant gui!*. of a premeditated murder. Some of

these instructions that I have in my hand the Judge has read to

you already. Others he will read to you. I am going to refer to

Instructions 20 which he has not read yet. I will anticipate that

he will instruct you in determining the punishment against the

defendant for the murder of Janie you must first unanimously

determine whether the defendant murder [sic] Janie Tracy for

the purpose of receiving money or any other thing of value.

Look at the evidence ladies and gentlemen that you

recall. You heard in this case yesterday and the day before the

defendant on the videotape that you saw here in the courtroom

was asked why he broke into the house. For money. For money.

They asked him, did you find any money. He saw some pennies

in the house. Did you take the pennies? No. I didn’t bother with

the pennies. And then he waited 20 minutes, the same amount

of time | have to talk to you about this. That is how long he

waited for one reason. For money. He told you that he knew

that Miss Tracy had the money on her. She didn’t keep it at

home. So, he waited 20 minutes and then he coldbloodedly

ambushed here. He fixed that light bulb because he knew

exactly what she would do and he was waiting. He lured her in

there for one reason, for money.

Let’s look at this a little differently. Look at that I think

there is no doubt that you can find that he did this for the purpose

of receiving money or something of value or something of a

monetary value. That makes this case a lot different and a lot

more severe and serious than someone who had what could be

considered by some somewhat of a legitimate reason. There are

times when people get in a fight and get made and get even later

A-92

on. That is a little more humane than just killing somebody for

$15.00 and to take her car and go for a joy ride. And it wasn’t

just anybody that he picked on. This was a woman who raised

him. This was a woman you just heard Miss Morgan say if it

came to a choice between her and the defendant she chose the

defendant. This is the woman that for 15 lousy dollars and an

opportunity to ride around he murdered. And he waited and he

hid in wait and he waited and knocked her down and then he

stuck her. That is a lot more coldblooded than for any other

reason on earth.

He is no better than Judas. He took the woman who

raised him, the woman who put him above herself and murdered

her for $15.00. That is not all that is involved in this case.

You heard Mr. Gary said I know him. I have known him

at the jail. Ladies and gentlemen Gary didn’t know him and

raise him for 15 years. Itis a very serious question that you have

to consider. There are some reasons why the death penalty is the

only appropriate punishment in this case.

MR. CURRAN: Your Honor, I object. I believe there

is only one aggravating circumstance has been applied. That is

a reason not reasons.

THE COURT: Very well. Overruled. Let’s proceed.

MISS LEISENRING [sic]: If you don’t think that is

aggravated enough to kill a woman who raised him from three

years old to kill a woman who buy things for him or herself for

$15.00, if you don’t think that is aggravated, then somebody

lost their values along the way. In addition to which the death

penalty serves another purpose. You heard the man learned in

the criminal justice system talk about deterrents. And what did

he tell you? The weight of the authority is that there is no

deterrent. There is no absolute. The expert disagreed and I am

going to tell you this. When you take a premeditated deliberated

A-93

thoughout{[sic] murder, that is the type of crime that the death

penalty will deter because the type of persons that considers

taking somebody’s life fully and cooly reflects upon it is the

kind of person who can think to himself. He has time to think

to himself if I can get the death penalty I may not do this. This

is the opportunity. There is no guarantee but there is a chance

that somebody may not become an innocent victim for some-

thing like that. The death penalty does no good if it stays on the

book and it is not applied in appropriate cases. Nobody can

guarantee you that the death penalty will accomplish the saving

of one life but it is an example worth taking because you are

talking about saving innocent lives like Miss Tracy who died a

horrible death. I can’t bring Miss Tracy back. Nobody can.

Some good can come out of the fact that this happened when we

look at it now we can’t change it. Maybe some good can come

out of it. Maybe just one person will change his mind under the

fear and the threat that it may be that he would forfeit his life by

taking another life. It is not a guarantee.

If we lose what have we done? We have taken a man by

his actions has forfeited his right to live. We have taken a

coldblooded murderer and put him to death after he forfeited his

life on April 9, 1981. If it works we may save an innocent life

like Miss Tracy. If it doesn’t then he forfeited his life on April

Oth anyway.

Ladies and gentlemen he is 17 years old as he sits here

calm and cooly like I told you in terms of viciousness you don’t

get any older. What that man did is as apprehensible as anything

you can think of. To take a woman 55 years old who has a soft

spot in her head that he knows about because she raised him for

15 years. For $15.00 he takes her life and snuffs it out. If he

asked her for the $15.00 she would have given it to him but he

didn’t want that. He wanted to take it. He wanted to be a big

A-94

man. There is only one punishment that is appropriate and fits

this crime. And that is the death penalty.

Miss Leisenring is going to have an opportunity to talk

to you. She make talk to you about the horrors of the gas

chamber. I don’t know. If she does I want you to remember this.

[ want you to think of Miss Tracy when she walked in that house

in the dark, dragging a !eg, when she went to turn the light on,

when she got hit over the head with this. I want you to think of

the pain she felt when she screamed and went down on the

ground and she looked up and saw the man that she would have

given anything he wanted with a knife and she fought for her life

when she grabbed that knife, think of that and she fought for her

life against this life. That is how she got cut and he knew where

she was vunerable [sic] and he stabbed her in the nght side. It

__ didn’t work. He had the wrong side so he went to the other side.

He knew her. He planned it. He killed the woman that raised

him. He may sit here and finally cry. I hope he does look at what

he did and how he acted afterward. He is crying for himself. He

doesn’t even care about Janie Tracy. What he did this is the only

punishment for that that fits this crime. That is the death

penalty.

Something you may consider, certainly you can con-

sider the fact it has been proven beyond a reasonable doubt that

he did this for money for himself. Himself. Himself. Himself.

All he thought about. And he didn’t give a damn about her, the

woman that raised him. The woman who'd have died for him

and did die for him for $15.00 that he wanted. That is the kind

of person you are dealing with. I want you to think of that.

Think of what’s going through Miss Tracy’s mind as she looked

up off the floor and she saw a knife in the hand of a man that she

raised and seh [sic] loved as he killed her. After he planned it

and he waited and he set it up.

A-95

There is only one appropriate punishment in this case. |

want you to look into your hearts and your minds. This is

probably the most difficult thing you will have to do, most of

you if not all of you, in your lifetime. I don’t want you to make

a mistake. Review everything you have heard and you tell me

is that worth saving or is that maybe someone else’s life can be

spared. Maybe there is a chance. Well, I will tell you that

chance should be taken. And he should be sentenced to death.

Maybe something good can come out of this. If you don’t, no

good is going to come out of this.

Miss Leisenring is here for one reason. She specializes,

she is here for one part of this trial.

MISS LEISENRING: We both are criminal attorneys.

I am not a specialist.

THE COURT: All right. Sustained.

MR. BAUER: She is handling only one part of this trial.

All of her preparation goes into this part of the trial. Listen to

what she has to say. Tell me honestly in your minds with your

verdict if what she has to say can possibly outweigh what he did

Apirl [sic] 9th when he ended the life of Miss Tracy, a woman

who would have done anything for him. Anything. His own

witness told you she put herself over him or him over herself

before herself. She came second. He came first and he killed

her for $15.00 and the opportunity to ride around and buy a

drink for a friend.

If that is not worth the death penalty then something is

wrong here.

Thank you.

A-96

CLOSING ARGUMENT OF DEFENSE

ON PUNISHMENT

MISS LEISENRING: Ladies and gentlemen. It is now

my opportunity to address you in that final stage of the trial.

Last night | watched each and every one of you as you

returned the verdict in this case and I know how difficult it was

for each of you to return a verdict. You considered the matter

before you made your decision. | don’t envy you the task that

lies ahead of you for literally you hold a life in your hand. You

will probably never again be in this position. You must decide

now within a little while whether this 17 year old boy lives or

dies.

During jury selection of you you indicated that you

could consider the death penalty. Those people, and there were

quite a few among yourselves, said they were opposed to the

death penalty under any circumstances, have been eliminated

but you, saying that you were able to consider the death penalty

and imposing it, are two very very different matters.

Let us first turn to the question of execution in general.

What are the reasons for executing people? The first, the most

commonly used and obviously relied upon by Mr. Bauer is the

deterrent effect. We have presented evidence to the contrary.

Mr. Gilsinan, a professor from St. Louis University and instruc-

tor at St. Louis University and the police academy came here a

former Denver police officer, and testified in front of you and —

he listed or has told you that the weight of the professional

opinion is that capital punishment is not a deterrent to premedi-

tated deliberated crime. You have to return a verdict to that

crime. Whatever Mr. Bauer has said to you about murder first

degree and manslaughter does not apply here. You have to

return a verdict of capital murder. And that is precisely what

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Mr. Gilsinan addressed his argument to. He had told you that

the death penalty, the weight of professional opinion is that the

death penalty does not deter capital murder. As a matter of fact

he has told you that it probably has the opposite effect. Oddly

enough, strange as it may seem, there is a stimulation effect that

people that commit crimes because they identify the executions

not with those person who are executed.

The second reason that Officer Gilsinan gave for the

death penalty is revenge. The phrase that you heard from some

of your number, those who are no longer here an eye for an eye

and a tooth for a tooth. Ladies and gentlemen I submit to you

that in this type of thinking is what ruled in the most primitive

types of societies. Surely we have evolved and progressed

beyond that type of philosophy. Mercy and compassion are

qualities that raise us above our animal life forbearers [sic].

Mercy and compassion are qualities, marks of a civilized

society. I would hope that you all consider yourselves to be

members of a society that is civilized and continually struggling

to become more civilized. Nearly two thousand years ago aman

walked the shores of Galilee with his message and he said

instead of revenge let us have love. Instead of revenge let us

have mercy. Now perhaps for some the idea of an eye for an eye

and a life for a life is a gut reaction. But ladies and gentlemen

I subrnit to you it is one of the most base primitive of reactions.

Surely you as jurors with the responsibility that you have now

can and should rise above those feelings. Rise to a higher plain

of feelings to mercy and compassion.

A third argument that often is given is that the death

penalty protects socity [sic]. Ladies and gentlemen | submit to

you there are alternatives. In primitive times such measure were

necessary because there were no alternative. We can look [sic]

this boy up. You can lock him up for the rest of his life for the

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next 50 years of his life. He will be 67 years old when he is

released. It will be the year two thousand thirty two. Many of

us will not be here. We can protect ourselves from harm without

killing him. This not a war ladies and gentlemen where there are

no alternatives. Where the soldier we confronted with his foe

must attack and kill or be killed. We have alternatives. The

alternatives here in this case are SO years without the possibility,

any possibility of probation and parole.

Ladies and gentlemen the fourth reason is punishment.

I submit to you that 50 years without the possibility of probation

and parole is an alternative and a terrible punishment. Now

consider the facts in this case and ladies and gentlemen Mr.

Bauer simply, not simply, but to a large extent got up and

reargued the facts in this case. You have already made your

decision. You have alread [sic] rendered a verdict form the facts

in this case. You decided it was capital murder. Now, you must

decide whether or not this is aggravating circumstances and that

is what you must look to. It is alleged that the murder of Janie

Tracy was committed for money for the purpose of receiving

money. How does that distinguish this case form a burglary a

robbery or a fraud. Does that distinguish this case to the extent

that it warrents [sic] capital punishment? Now, Mr. Bauer has

argued that this crime was committed for $15.00. Ladies and

gentlemen I ask you would it make any more sense if it had been

committed for one hundred thousand dollars? Do we puta value

on people’s lives? Would it have made more sense? That is

really the other side of what he is arguing or tried to argue that

it didn’t make sense because it was only $15.00. Would it have

made sense if it were one hundred thousand dollars?

Now ladies and gentlemen there is no doubt that Janie

Tracy suffered. Surely anyone who endures injury suffers.

Even for an instance or a second. Even for the shortest period

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of time. I am not here to say that she didn’t suffer. Remember,

even if you do find the existence of aggravating circumstances

in this case that does not mean that you have to return the death

penalty. If there is any one among your number, one person,

one person, who feels that the death penalty is unwarranted,

then it should not be given in this case. Then Frederick Lashley

will be spared. One person. | would like to turn now to the

question of mitigation. Many of you expressed strong reserva-

tions you hesitated long before you said you thought you could

consider the death penalty in the case where the accused was |7

years old. And your feelings are very much in line with the

Missouri State Legislature. They have outlined that the age of

the defendant is one of the factors that may be taken into

consideration. Fred Lashley is an adult in the eyes of the

criminal justice system. He is responsible for his actions and his

behavior. | am not saying otherwise. But, ladies and gentle-

men, he is just at the threshhold of his adult life. He bears many

of the wages of childhood. He can’t vote. Adults are legally

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