# Appendix — Delo v. Lashley

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 272

## Text

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:

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0347%3A3. Public record. Not legal advice.