Appendix — Roper v. Weaver

iA Supreme Court, U.S.

| a TLE D

No. 06-313 AUG 29 2006

OFFICE OF THE CLERK

In the

SUPREME COURT OF THE UNITED STATES

DONALD P. ROPER,

Superintendent, Potosi Correctional Center,

Petitioner,

Vv.

WILLIAM WEAVER,

Respondent.

On Petition for Wnt of Certioran

to the United States Court of Appeals

for the Eighth Circuit

APPENDIX TO PETITION

VOL. 1 OF Il

JEREMIAH W. (JAY) NIXON

Attorney General of Missouri

JAMES R. LAYTON

State Solicitor

STEPHEN D. HAWKE

Counsel of Record

Assistant Attorney General

P.O. Box 899

Jefferson City, MO 65102

Phone: (573) 751-3321

Fax: (573) 751-3825

Attorneys for Petitioner

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TABLE OF CONTENTS

Opinion in William Weaver v. Michael Bowersox.

Nos. 03-2880/2938 (8 Cir. February 16, 2006

(corrected February 23, 2006))............... A-2

Memorandum & Order in William Weaver

v. Michael Bowersox, No. 4:96-CV-2220 CAS (E.D.

PE CEE naccnecadundsedednenpns A-23

Opinion in William Weaver v. Michael Bowersox,

No. 99-3462 (8” Cir. February 23, 2001) .... A-187

Memorandum & Order in William Weaver

v. Michael Bowersox. No. 4:96-CV-2220

CAS (ED. Mo. Ams, 9, IDPP) .. 2. ccecccess A-203

Order Denying Rehearing and Rehearing En Banc

in William Weaver v. Michael Bowersox,

Nos. 03-2880/2938 (8" Cir. May 31, 2006) ... A-220

Opinion of the Missouri Supreme Court in

State v. Weaver, No. 71051 (Mo. banc

BPO, Wey GOOD cccwcccces aceiwieieene A-221

Findings of Fact and Conclusions of Law in William L. Weaver

v. State of Missouri, No. 603615 (St. Louis County

Circuit Court Nov. 29, 1994) ................ 258

Transcript of penalty phase closing argument in State of

Missouri v. William L. Weaver, No. 565118B .. 274

Penalty phase jury instructions in State of Missouri v. William

L. Weaver, No. 565118B (St. Louis County

SEN. 6 5s 0b eK bH04ebesuneeveehecn 299

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United States Court of Appeals

FOR THE EIGHTH CIRCUIT

Nos. 03-2880/2938

William Weaver, 34

a

Appellee/Cross-Appellant, *

* Appeals from the

vV. * United States District

* Court for the Eastern

Michael Bowersox, * District of Missouri.

*

Appellant/Cross-Appellee. *

Submitted: September 13, 2004

Filed: February 16, 2006 (Corrected 2/23/06)

Before BYE, BOWMAN, and MELLOY, Circuit J udges.

MELLOY, Circuit Judge.

The State of Missouri appeals the grant of habeas relief

to William Weaver. The district court’ concluded that the

prosecutor’s closing arguments during the penalty phase of

Weaver’s capital murder trial violated the United States

Constitution. Weaver cross-appeals the denial of his claim that

the prosecutor made improper closing arguments during the

guilt phase of the trial. We affirm.

'The Honorable Charles A. Shaw, United States District

Judge for the Eastern District of Missoun.

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I.

In separate Missouri state court trials held in 1988,

William Weaver and Daryl Shurn were convicted of the

execution-style shooting death of Charles Taylor. Taylor was

an acquaintance of Shurn who was going to testify against

Shurn in a drug case. Shurn hired Weaver to kill Taylor, and

Weaver was convicted of doing so.

During his closing argument in the penalty phase, the

prosecutor made a series of statements relevant to the claims in

this matter. In a claim the parties identify as Claim 2E, the

prosecutor made the following statements:

So, yeah, is there a possibility he’s innocent? A

possibility. I’m not going to deny that. But

that’s not what’s required by the law and that’s

not what we could live by. If that’s required,

nobody would ever be sentenced to die. We

wouldn’t have a death penalty. And, quite

frankly, if you don’t sentence him to die in this

case, there’s no point in having a death penalty.

Weaver’s tnial counsel objected to the statements as improper

and misstatements of the law. The state trial court sustained

the objection and issued a curative instruction for the jury to

disregard the statements.

In a claim the parties identify as Claim 2F, the

prosecutor made the following statements:

Then I'll say what I said earlier. If these facts

don’t justify, don’t cry out for the death penalty,

then which facts do? Ifa cold-blooded hit on

behalf of drug scum isn’t enough for the death

penalty, then what facts justify it?

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I know there’s a movie, Patton, and in the

movie, George Patton was talking to his troops

because the next day they were going to go out

in battle and they were scared as young soldiers.

And he’s explaining to them that | know that

some of you are going to get killed and some of

you are going to do some killing tomorrow

moming. And they all know that. And he was

going to try to encourage them that sometimes

you’ve got to kill and sometimes you’ve got to

risk death because it’s mght. He said: But

tomorrow when you reach over and put your

hand in the pile of goo that a moment before

was your best friend’s face, you’ll know what to

do.

Defense counsel objected to the statements as improper on the

grounds that they were intended to inflame and prejudice the

jury. The state trial court overruled the objection.

Finally, in a claim the parties identify as part of Claim

2M, the prosecutor made statements that Weaver contends

improperly focused the jury on society’s general war on drugs,

urged the jury to sentence Weaver to death merely to send a

message to other drug dealers, and caused the jury to ignore its

obligation to individualize its sentencing consideration by

focusing on the particular facts involved in his case:

It strikes right at the heart of our system.

You’ve got to look beyond William Weaver.

This isn’t personal. This is business. You

people represent the entire community. You

represent society. You have to give a message

here. You have to tell the Williams Weavers

and the Daryl Shurns of the world, and you have

to be willing to look them nght in the eye when

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you do it, that there’s a point at which we won't

allow you to go. And when you do, prison’s

too good. It’s the death penalty.

Sometimes killing is not only fair and justified;

it’s right. Sometimes it’s your duty. There are

times when you have to kill in this life and it’s

the right thing to do. If Charles Taylor had

been able to get his gun out that day, would you

have said it was right for him to kill Weaver and

Shurn?

Of course, you would. It would have been self-

defense. Well, it was night to kill then and it’s

night to kill him now.

This case - | guess it’s the one that just cries out

to you to say protect the community. The drug

dealers, they are taking our streets away from

us. Are we going to take them back? Are we

going to let them have the streets or are we

going to fight back? If the drug peddlers are

going to run our community, then all is lost.

Then there’s no point in having jurors. The

death penalty applies in some cases. It applies

in this case.

When it comes time after [defense counsel]

talks to you, I'll talk to you again briefly, and

then you’ve got to go to the jury room and

you've just got to toughen up and do what’s

right, even though it’s going to be tough.

You’ve got to say this is bigger than William

Weaver. It’s not personal; it’s business.

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And I’m going to beg you for the entire

community and for society not to spare his life.

I’m going to beg you for the nght message

instead of the wrong message. The right

message 1s life? For an execution? That's the

night message? That’s the message you want to

send to the drug dealer, the dope peddlers and

the hit men they hire to do their dirty deeds: Life

in prison is what you get when we catch you and

convict you. Life in prison? That’s the

message you want to send to the scum of the

world? That when we catch you and we’re

convinced you re guilty, we’re going to give you

life in prison? That's not the nght message.

The message has to be death for these types of

people. That’s the only message they are going

to understand.

The one thing you’ve got to get into your head,

this is far more important than William Weaver.

This case goes far beyond William Weaver.

This touches all the dope peddlers and the

murderers in the world. That’s the message you

have to send. It doesn’t just pertain to William

Weaver. It pertains to all of us, the community.

They are our streets, our neighborhoods, our

family. The message is death, not life. And

you’ve just got to geer [sic] yourself to that.

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You’ve got to think beyond William Weaver.

As | told you earlier, this is our worst nightmare.

This is society’s worst nightmare. If they could

kill witnesses and we don’t execute them in

exchange, then there’s no deterrence. Then the

whole system fails and then chaos reigns and

our streets are never safe. The dope peddlers

reign and people like William Weaver do.

It’s bigger than William Weaver. And you've

got to have the guts to do it. I’m the

P »secuting Attorney in this county, the top law

enforcement officer in the county. | decide in

which cases we ask for the death penalty and in

which cases we don’t.

Weaver's counsel objected to the last statement regarding the

prosecutor being the top law enforcement officer in the county

who chooses the cases in which to pursue the death penalty.

The trial court sustained the objection to that statement, and

instructed the jury to disregard it.

The jury sentenced Weaver to death for his role in the

offense.

After exhausting his state post-conviction remedies,

Weaver filed a petition in federal district court under 28 U.S.C.

§ 2254, which, after amendment by counsel, raised twenty-two

separate claims for relief. The district court granted relief on

the first of those claims that Weaver's Fourteenth Amendment

rights were violated when the prosecutor exercised two

peremptory strikes against black venirepersons dunng jury

selection. The State of Missouri appealed. This court

reversed and remanded with instructions to address the

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remaining twenty-one issues raised in Weaver's petition.

Weaver v. Bowersox, 241 F.3d 1024, 1032 (8" Cir. 2001).

On remand, the district court again granted relief, this

time on three claims related to improper closing arguments the

prosecutor made during the penalty phase of Weaver’s tnal.

The district court vacated the death sentence, and ordered that

Weaver either be sentenced to life in prison without the

possibility of parole or be given a new penalty-phase trial. The

district court denied relief on all other claims, but granted a

certificate of appealability on two claims related to closing

arguments the prosecutor made during the guilt phase of

Weaver’s trial.

Il.

We first briefly address the cross-appeal. In claims the

parties identify as 2B and 2C, Weaver contends the prosecutor

made six statements during the guilt-phase closing argument

and rebuttal which improperly referred to the prosecutor’s

personal beliefs or threatened the jury. A discussion of the

actual statements is not necessary because the district court

determined the claims had been procedurally defaulted. Asa

consequence, Weaver has to show “cause and prejudice” or a

“fundamental miscarriage of justice:” to have the claims

reviewed. See Coleman v. Thompson, 501 U.S. 722, 750

(1991) (“[Fljederal habeas review of [a procedurally defaulted

claim] is barred unless the prisoner can demonstrate cause for

the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider

the claim[] will result in a fundamental miscarriage of justice.”’).

The district court determined Weaver failed to show

cause and prejudice or demonstrate a fundamental miscarnage

of justice arising from the failure to consider the claims. In an

abundance of caution, the district court addressed the merits of

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the claims and determined the statements did not “so infect[]}

the trial with unfairness as to make the resulting conviction a

denial of due process.” Darden v. Wainwnght, 477 U.S. 168,

181 (1986).

On appeal, Weaver does not address the procedural

default issue. He does not argue there was cause and prejudice

or that a fundamental miscarriage of justice occurred. By

failing to address the procedural default issue, he has abandoned

his cross-appeal. See, e.g., Etheridge v. United States, 241 F.3d

619, 622 (8 Cir. 2001) (“Claims not argued in the briefs are

deemed abandoned on appeal.”). We therefore decline to

review the merits of Weaver’s cross-appeal.

Il.

We next turn to the issue of whether Weaver's claims

are subject to the strictures placed on our review by the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). Weaver argues the Missouri Supreme Court did

not address the “war on drugs” claims set out in Claim 2M.

Our review of the Missouri Supreme Court decision leads to the

conclusion that although the war on drugs claims were not

specifically discussed, the Missouri Supreme Court did address

the claims in a conclusory fashion that is sufficient to bring the

case under AEDPA.

The Missouri Supreme Court addressed the appellant’s

claims about the prosecutor’s emphasis on his position as the

elected prosecutor in Section IV.A. of the opinion and a claim

the prosecutor accused defense counsel of suborning perjury in

closing argument in Section [V.B. Those claims were

discussed in considerable detail by the Missouri Supreme Court.

The Supreme Court then went on to discuss the arguments

raised in Weaver’s “Other Argument Section” of his state post-

conviction application in Section IV.C., under the heading:

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“Other Improper Argument.” The Court stated in that section:

Lastly, Weaver puts forth a collection of

allegedly improper arguments made by the state

during the punishment phase. including the

complaint that the prosecutor argued matters

outside the evidence that lacked evidentiary

support. The prosecutor argued that had

Weaver not run out of bullets he would have

shot the arresting officer. He argued that if a

prosecution witness had been out jogging a short

while after the crime Weaver would have also

shot that witness. Finally, he argued that the

death penalty would be a deterrent. Our review

of the penalty phase arguments discloses that

these arguments are reasonable. The fact that

the crime had been planned for the purpose of

killing a witness and for the purpose of

advancing what was apparently a very violent

drug enterprise, permits an inference that the

defendant had a high propensity for violent

conduct in the future. The claim that the trial

court abused its discretion in permitting the

argument is without merit. The point is denied.

Weaver, 912 S.W.2d 499, 514 (Mo. 1995).

Our court’s en banc decision in Brown v. Luebbers, 371

F.3d 458, 462 (8" Cir. 2004) held that “the ‘summary nature’ of

the discussion of the federal constitutional question does not

preclude application of the AEDPA standard.” The opinion

goes on to cite to James v Bowersox, 187 F.3d 866, 869 (8" Cir.

1999). In James, our court stated that “[t]he summary nature of

the Missouri Court of Appeals opinion does not affect [our

decision to app!y the AEDPA] standard.” Id. at 869.

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The Seventh Circuit ruled in Muth v. Frank, 412 F.3d

808, 815 (7" Cir. 2005) that:

AEDPA’s requirement that a petitioner’s claim

be adjudicated on the merits by a state court is

not an entitlement to a well-articulated or even

a correct decision by a state court. In fact,

several circuits have held that a state court need

not offer any reasons and summarily dispose of

a petitioner’s claim and that summary

disposition would be an adjudication on the

merits. (emphasis in original)

The Missouri Supreme Court’s summary disposition of

Section IV.C. claims is an adjudication on the merits. We

understand the concurrence’s argument that the Missoun

Supreme Court discussed, in a cursory fashion, some of the

specific claims set out in Section IV.C., but did not specifically

address the war on drugs claim. However, a decision by a state

supreme court that disposes of a claim, even in a conclusory

fashion, is sufficient. In this case, the Missouri Supreme Court

recognized a number of claims relating to allegedly improper

closing arguments and summarily denied those claims. The

discussion in Section IV.C., of the Missouri Supreme Court

decision, read in context with the discussions in Section IV.A.

and IV.B. is sufficient under our court’s interpretation of

AEDPA.

IV.

Under AEDPA, a court should only grant relief if “a

decision [is] contrary to, or involves an unreasonable

application of, clearly established Federal law” or “a decision

[1s] based on an unreasonable determination of the facts in light

of the evidence presented.” 28 U.S.C. §2254(d)(1)-(2); see

also Williams v. Taylor, 529 U.S. 362 (2000).

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The State argues that the United States Supreme Court

has not addressed improper penalty-phase closing arguments by

a prosecutor. However, we have previously found that

argument unpersuasive. Copeland v. Washington, 232 F.3d

969, 974 (8" Circ. 2000) (noting that “it is apparent that there

are Supreme Court decisions on penalty phase closing

argument” and “{t]here are also Supreme Court decisions on

guilt phase closing argument that are relevant’).

The prosecutor’s argument violates due process if it

“infect{[s] the trial with unfairness.” Darden 477 U.S. at 181.

To determine if a prosecutor’ s statement infected Weaver’s trial

with unfairness, the court must:

(1) Measure the type of prejudice that arose

from the argument; (2) examine what defense

counsel did in his [or her] argument to minimize

prejudice; (3) review jury instructions to see if

the jury was properly instructed; and (4)

determine if there is a reasonable probability

that the outcome of the sentencing phase would

have been different, taking into account all the

aggravating and mitigating circumstances.

Antwine v. Delo, 54 F.3d 1357, 1363 (8" Cir. 1995) (citing

Newlon v. Armontrout, 885 F.2d 1328, 1337 n.10 (8" Cir.

1989)). The court should only grant habeas corpus relief it the

state’s “closing argument was so inflammatory and so

Outrageous that any reasonable trial judge would have sua

sponte declared a mistrial.” James v. Bowersox, 187 F.3d 866,

869 (8 Cir. 1999). Without applying AEDPA, we vacated two

sentences including that of Shurn, the man who hired Weaver

to kill Taylor, when the prosecutor in Weaver’s trial made

similar improper arguments in the penalty phase. Newlon, 885

F.2d at 1329; Shur v. Delo, 177 F.3d 662 (8” Cir. 1999).

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The prosecutor in this case made various penalty phase

Statements listed in detail in Section I. These statements can be

categorized into several types: (1) an analogy that the role of

a juror is like that of a soldier who must do his or her duty and

have the courage to kill; (2) statements by the prosecutor about

his personal belief in the death penalty, (3) statements that

executing Weaver was necessary to sustain a societal effort as

part of the “war on drugs”; (4) assertions that the prosecutor had

a special position of authority and decided whether to seek the

death penalty; and (5) arguments that were designed to appeal

to the emotions of the jury (culminating in a statement that the

jury should “kill [Weaver] now”).

Category (1) is factually unique, but contains statements

similar in nature to impermissible statements made in other

cases. When a prosecutor tells a jury that they have a duty to

kill and, as in this case, uses a graphic story from a movie to

support that duty, the statement should be taken as “calculated

to remove reason and responsibility from the sentencing

process.” Newlon, 885 F.2d at 1338. Soldiers have no choice

but to kill. Soldiers follow orders when they kill. The

responsibility for a particular death lies, therefore, with a

commanding officer or the declaration of war itself, and not

with a soldier’s individual conscience. Furthermore, wartime

killing is not a deliberative process, not a considered choice.

Describing jurors as soldiers with a duty eviscerates the

concept of discretion afforded to a jury as required by the

Eighth Amendment. See Zan v. Stephens, 462 U.S. 862, 879

(1983). Not only was the main thrust of the prosecutor’s

argument diametrically opposed to the requirement that capital

sentencing be at the jury’s discretion, it also “diminished the

jury’s sense of responsibility for imposing the death sentence,

in violation of the Eighth Amendment under Caldwell vy.

Mississippi, 472 U.S. 320, 86 L.Ed.2d 231, 105 S.Ct. 2633

(1985).” Antwine, 54 F.3d at 1361.

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Categories (2), (4), and (5) are improperly inflammatory

under several existing United States Supreme Court precedents.

Statements about the prosecutor's personal belief in the death

penalty are inappropriate and contrary to a reasoned opinion by

the jury. Miller v. Lockhart, 65 F.3d 676, 684-86 (8" Cir.

1995). A prosecutor should not emphasize his or her position

of authority in making death penalty determinations because it

may encourage the jury to defer to the prosecutor’s judgment.

Newlon, 885 F.2d at 1335-37. Further, arguments against a

rational decision by the jury, and specifically those that implore

the jury to kill the defendant immediately, are contrary to a fair

proceeding. Id. at 1336-37; see also Shurn, 177 F.3d at 667-69

(Wollman, J., concurnng).

Category (3) is also factually distinct, but similar to

arguments that are improper under existing law. The

controlling Supreme Court precedent is well-settled and

longstanding: the Eighth Amendment requires capital

sentencing to be an individualized decision-making process.

See. e.g., Jones v. United States, 527 U.S. 373, 381 (1999) (“In

order for a capital sentencing scheme to pass constitutional

muster, it must perform a narrowing function with respect to the

class of persons eligible for the death penalty and must also

ensure that capital sentencing decisions rest upon an

individualized inquiry.”); Buchanan v. Angelone, 522 U.S. 269,

274-74 (1998) (referring to “the Eighth Amendment

requirement of individualized sentencing in capital cases’’);

Romano v. Oklahoma, 512 U.S. 1, 7 (1994) (“States must

ensure that ‘capital sentencing decisions rest on {an]

individualized inquiry,’ under which the ‘character and record

of the individual offender and the circumstances of the

particular offense’ are considered.”) (quoting McCleskey_v.

Kemp, 481 U.S. 279, 303 (1987)); Harmelin v. Michigan, 501

U.S. 957, 995 (1991) (“We have held that a capital sentence 1s

cruel and unusual under the Eighth Amendment if it is imposed

without an individualized determination that that punishment is

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‘appropriate[.]*’’) (citing Woodson v. North Carolina, 428 U.S.

280, 305 (1976)); Zant, 462 U.S. at 879 (““What is important

(from a constitutional standpoint] at the selection stage is an

individualized determination on the basis of the character of the

individual and the circumstances of the crime.”).

The argument that a signal must be sent from one case

to affect other cases puts a improper burden on the defendant

because it prevents an individual determination of the

appropriateness of capital punishment. Sublett v. Dormire, 217

F.3d 598, 600-01 (8 Cir. 2000). Further, invoking a jury's

general fear of crime to encourage the application of the death

penalty in a particular case is unfairly inflammatory. Copeland

232. F.3d at 972-73. Using the conscience of the community as

a guiding principle for punishment puts too significant of a

burden on a single defendant. United States v. Johnson, 968

F.2d 768, 770-71 (8 Cir. 1992).

There is little doubt that the prosecutor’s statements are

such that we would certainly grant relief without applying

AEDPA. However, case law that appiies the AEDPA bar

makes it a closer decision. The question for us is whether the

state court made an unreasonable interpretation of federal law

as required by AEDPA. The finding by our court in Copeland

is illustrative on this point. In Copeland, applying AEDPA, we

found that the prosecutor’s arguments in the penalty phase

nsked creating a mob mentality by preying on the jury’s fear of

crime. Copeland, 232 F.3d at 975. Further, the court found

that, “it was unreasonable, in light of Supreme Court precedent,

to conclude that the argument did not result in a deprivation of

due process.” The statements in this case are more egregious

and systemic than those in Copeland.

The conclusion by the Missouri Supreme Court that “the

penalty phase arguments. . . [were] reasonable” is unreasonable

under existing United States Supreme Court precedents. It is

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unclear which precedents the Missouri Supreme Court applied.

Regardless, there can be no interpretation of the inflammatory

remarks by the prosecutor that is reasonable under the various

applicable United States Supreme Court precedents. As a

result, AEDPA does not bar relief in the present matter.

Vv.

For the foregoing reasons, we affirm the judgment of the

district court.

BYE, Circuit Judge, concurring in the result.

| agree Weaver's claims warrant habeas relief even if

AEDPA’s strict standard of review applies. | write separately

because I do not believe AEDPA applies.

When a claim raised in state court proceedings 1s

ignored by the state courts “we apply a pre-AEDPA standard of

review.” Clemons v. Luebbers, 381 F.3d 744, 756 n.8 (8" Cir.

2004) (citing Taylor v. Bowersox, 329 F.3d 963, 967-68 (3"

Cir. 2003)); see also Wiggins v. Smith, 539 U.S. 510, 534

(2003) (“in this case, our review is not circumscribed by a state

court conclusion with respect to prejudice, as neither of the state

courts below reached this prong of the Strickland analysis.”);

Canaan v. McBride, 395 F.3d 376, 382 (7" Cir. 2005) (“When

a state court is silent with respect to a habeas corpus petitioner’s

claim, that claim has not been ‘adjudicated on the merits’ for

purposes of §2254(d) [and] a federal court cannot apply the

deferential standard provided by 2254(d).”); Maples v. Stegall,

340 F.3d 433, 436 (6" Cir. 2003) (““Where, as here, the state

court did not assess the merits of a claim properly raised in a

habeas petition, the deference due under AEDPA does not

apply.”).

A careful side-by side examination of the clams Weaver

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made in state court and the Missouri Supreme Court’s opinion

addressing those claims convinces me the latter ignored what

Weaver referred to then as his “War On Drugs” argument, and

what the Court refers to now as categories (3) and (5) of

Weaver’s claim, that is, the “War On Drugs” argument as well

as the statements designed to appeal to the emotions of the jury.

Before the Missouri Supreme Court, Weaver made six

separate arguments in a section entitled “Other Improper

Arguments.” The six separate arguments were as follows: 1)

the prosecutor’s statement that if Weaver had not run out of

bullets, he would have shot a police officer; 2) the prosecutor’s

statement that if Weaver had not run out of bullets, he would

have shot witness Jean Hanson; 3) the prosecutor’s discussion

of the death penalty as a deterrent to homicide in violation of a

pre-trial motion in limine;’ 4) the prosecutor’s opinion there

were cnmes other than first degree murder for which a sentence

of life without parole would be appropriate; 5) the prosecutor’s

claim he could have presented victim impact evidence through

the victim’s wife, relatives, and friends; and 6) the “War On

Drugs” argument, which identified and challenged the specific

portions of the sentencing transcript containing the prosecutor’s

*Specifically, the prosecutor argued:

The death penalty deters. I’m convinced of that.

People can argue for a thousand years whether

it does or not, but I’m convinced it does. It

doesn’t deter passion killings. It doesn’t deter

crazed people who kill. But it deters business

killings like this.

I set fort the specifics of this argument for the purpose of

showing Weaver's “deterrent” claim was district from his “war-

on-drugs” claim in state court.

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statements that have been referred to as Claim 2M in the

proceedings before our court.

The Missouri Supreme Court’s opinion discusses only

the first three of the six arguments advanced by Weaver.

Lastly, Weaver puts forth a collection of

allegedly improper arguments made by the state

during the punishment phase, including the

complaint that the prosecutor argued matters

outside the evidence that lacked evidentiary

support. The prosecutor argued that [1] had

Weaver not run out of bullets he would have

shot the arresting officer. [2] He argued that if a

prosecution witness had been out jogging a short

while after the crime Weaver would have also

shot that witness. [3] Finally, he argued that the

death penalty would be a deterrent. Our review

of the penalty phase arguments discloses that

these arguments are reasonable. The fact that

the crime had been planned for the purpose of

killing a witness and for the purpose of

advancing what was apparently a very violent

drug enterprise, permits an inference that the

defendant had a high propensity for violent

conduct in the future. The claim that the tal

court abused its discretion in permitting the

argument is without merit. The point is denied.

State v. Weaver, 912 S.W.2d 499, 514 (Mo. 1995).

In determining whether a claim has been “adjudicated

on the merits” for the purpose of applying AEDPA’s strict

standard of review under 28 U.S.C. §2254(d), “[w]e must

simply look at what a state court has said, case by case, and

determine whether the federal constitutional claim was

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considered and rejected by that court.” Brown v. Luebbers,

371 F.3d 458, 461 (8 Cir. 2004). While I acknowledge the

“summary nature of a state court’s decision does not affect the

applicable standard of review,” Closs v. Weber, 238 F.3d 1018,

1020 (8" Cir. 2001) (citing James v. Bowersox, 187 F.3d 866,

869 (8" Cir. 1999)), I submit a distinction must be drawn

between summarily disposing of a claim and wholly ignoring it.

Significantly, when I look at what the state court said in

this case, it is clear the state court discusses and analyzes only

three of the six arguments advanced by Weaver in his “Other

Improper Arguments” section. Most notably, the state court

identified the third of Weaver's six arguments as his fina/

argument, and nowhere discusses or analyzes Weaver’s last

three arguments, including his “War On Drugs” claim. I do not

know what else to glean from what the state court said other

than to conclude it ignored Weaver’s most compelling

constitutional claim.

As the Court notes, the Eighth Amendment requires

capital sentencing to be an individualized decision-making

process. See ante at 12. Not once, not twice, not thrice, but

seven times the prosecutor urged the jury to ignore the

individual offender, William Weaver. Instead of focusing the

jurors’ attention upon Weaver's character and record, and the

particular circumstances of Weaver's offense, the prosecutor

instead advised the jury “(t]he one thing you've got to get into

your head, this is far more important than William Weaver.

This case goes far beyond William Weaver.” He told the jury

“drug dealers . . . are taking our streets away from us.” He

advised the jury to “send a message” to “all dope peddlers and

murderers in the world [for the sake of] all of us, the

community. They are our streets, our neighborhoods, our

family.” He said drug dealers were ‘society's worst nightmare.

If they could kill witnesses and we don’t execute them in

exchange, then there's not deterrence. Then the whole system

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fails and then chaos reigns and our streets are never safe. The

dope peddlers reign.”

These statements, as well as the other improper

statements discussed by the Court, clearly violated Weaver's

constitutional rights. | have no trouble concluding such to be

the case when reviewing the district court’s decision de novo or

when applying the more demanding standard of review under

AEDPA. | therefore concur in affirming the judgment of the

district court.

BOWMAN, Circuit Judge, concurring in part and dissenting in

part.

I agree with Judge Melloy that all of Weaver's claims

are subject to review under the AEDPA standard and concur in

Part III of his opinion. But because | do not think that the Court

correctly applies that standard to Weaver's claims of

prosecutorial misconduct, | respectfully dissent. Under 28

U.S.C. §2254(d)(1), as amended by AEDPA, we must accept a

state court’s decision on the merits of a claim later raised in

federal habeas proceedings unless that decision “was contrary

to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of

the United States.” The Court today, purporting to apply the

AEDPA standard, holds that habeas relief must be granted to

Weaver on his sentence.

| The Court notes that several of Weaver's claims are

“factually unique” or “factually distinct,” presumably when

compared to habeas claims adjudicated by the Supreme Court

to date. ante at 10,11. These factual distinctions alone raise

red flags. 1 propose that it is less likely that a state court’s

decision will be contrary to or an unreasonable application of

clearly established federal law when there are no Supreme

Court cases on all fours. Moreover, the law that the Court cites

A-2)

today as on point is found in opinions from this Circuit, not in

opinions from the Supreme Court. “[A]s the statutory language

makes clear, . . . §2254(d)(1) restricts the source of clearly

established law to [the Supreme} Court’s jurisprudence.”

Williams v. Taylor, 529 U.S. 362, 412 (2000).

The Supreme Court cases to which the Court does refer

in its opinion stand for general propositions: “[a] prosecutor’s

argument violates due process if it ‘infect[s] the tnal with

unfairness,”” ante at 9 (quoting Darden v. Wainwright, 477 U.S.

168, 181 (1986)); the Eighth Amendment requires that a jury

not be precluded from exercising its discretion, ante at 1]

(citing Zant v. Stephens, 462 U.S. 862, 879 (1983) (noting the

requirement in capital cases for an “individualized

determination” of those defendants who should receive the

ultimate penalty “on the basis of the character of the individual

and the circumstances of the crime”’)); and there is a need for

“an individualized decision-making process” so that a death

sentence will pass constitutional muster, ante at 11 (citing

Supreme Court cases at 11-12). None of the Supreme Court

cases cited in the Court’s opinion touches on the distinct claims

of prosecutorial misconduct on which the writ was granted.

In these circumstances, | cannot agree that the Missoun

Supreme Court’s decision on the issue of the prosecutor’s

penalty-phase argument is contrary to or an unreasonable

application of clearly established federal law as determined by

the Supreme Court. Were it not for the AEDPA standard of

review, | might agree with the result reached by the Court today.

Indeed, the outcome was different - where we did not apply the

AEDPA standard - in our §2254 review of Weaver's co-

defendant’s death sentence on grounds of improper

prosecutorial closing argument in the penalty phase. Shur v.

Delo, 177 F.3d 662, 665-67 (8" Cir.), cert. denied, 528 U.S.

1010 (1999): see also Newlon v. Armontrout, 885 F.2d 1328

(8" Cir. 1989) (affirming pre-AEDPA grant of the writ on

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grounds of improper prosecutorial argument), cert. denied, 497

U.S. 1038 (1990). But under AEDPA, we are not empowered

to grant the writ even though we may believe that the state court

got it wrong. A State-court decision is not necessarily

unreasonable because the federal habeas courts deem it to be

incorrect. Williams v. Taylor, 529 U.S. at 411. “A federal

court may not overrule a state court for simply holding a view

different from its own, when the precedent from [the Supreme]

Court is, at best, ambiguous.” Mitchell v. =sparza, 540 U.S.

12, 17 (2003) (expounding the “contrary to” standard). The

only issue for the federal courts in this case is whether the state

court’s decision was contrary to or an unreasonable application

of clearly established federal law. Because of the apparent

inconclusive state of Supreme Court jurisprudence on the

alleged constitutional violation in this case (the Court cites no

apposite Supreme Court cases), | would hold that the state

court’s decision was neither contrary to nor an objectively

unreasonable application of federal law and would reverse the

judgment of the District Court.

A-23

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

WILLIAM WEAVER, )

Petitioner, .

v. No. 4:96-CV-2220 CAS

MICHAEL BOWERSOX,

Respondent.

MORAN N

This matter is before the Court on Petitioner’s First

Amended Petition for Writ of Habeas Corpus filed on June 27,

1997. Respondent filed a response on September 8, 1997, and

a supplemental response on September 11, 1997. Petitioner

filed a traverse on January 5, 1998.

I. Procedural History.

On July 19, 1988, petitioner William Weaver was

convicted of first-degree murder in the death of Charles Taylor

by a jury in St. Louis County, Missouri. The next day, the jury

sentenced Weaver to death.

Petitioner timely filed a pro se Motion to Vacate, Set

Aside or Correct a Judgment of Guilty and of a Sentence of

Death, pursuant to Missouri Supreme Court Rule 29.15 motion.

Appointed counsel for petitioner timely filed an amended

motion which incorporated the pro se motion and asserted

additional points for relief. The state court conducted an

A-24

evidentiary hearing on petitioner's 29.15 motion on September

13-15, 1993, with a subsequent hearing on July 28, 1994. The

postconviction motion court denied relief on all grounds on

November 29, 1994.

Weaver appealed his conviction and sentence to the

Missouri Supreme Court. Weaver’s direct appeal was

consolidated with his appeal from the denial of his

postconviction motions. On December 19, 1995, the Missouri

Supreme Court affirmed the conviction and death sentence. See

State v. Weaver, 912 S.W.2d 499 (Mo. 1995) (en banc).

On April 18, 1996, Weaver filed a pro se habeas petition

in federal district court. At that time, he had not yet petitioned

the United States Supreme Court for review of the Missoun

Supreme Court’s decision affirming his conviction and death

sentence. This Court dismissed his petition without prejudice

to permit Weaver to fully exhaust his state remedies. Weaver

petitioned the Supreme Court for a writ of certiorari, which was

denied on October 7, 1996. Weaver v. Missouri, 519 U.S. 856

(1996).

On November 12, 1996, Weaver filed a second pro se

habeas petition in the instant case. The Court appointed

counsel to assist Weaver, and Weaver filed the instant First

Amended Petition. This Court issued a Memorandum and

Order on August 9, 1999, which granted petitioner a wnt of

habeas corpus on his Batson claim, the first claim presented in

the First Amended Petition. The Eighth Circuit Court of

Appeals reversed by opinion dated February 23, 2001, and

directed this Court to address the remaining claims in

petitioner’s petition. See Weaver v. Bowersox, 241 F.3d 1024

(8th Cir. 2001).

II. Legal Standard.

in the earlier appeal of this matter, the Eighth Circuit

A-25

held that the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) applies to the instant petition for writ of

habeas corpus, because it was filed after the effective date of the

AEDPA.’ Weaver, 241 F.3d at 1029. Title I of the AEDPA

significantly amends habeas corpus law. The amended version

sets forth a more stringent standard for issuance of a writ of

habeas corpus, and substantially limits the power of a federal

court to grant a state prisoner’s habeas petition on grounds

decided on the merits in state court. Carter v. Kemna, 255 F.3d

589, 59] (8th Cir. 2001) (citing Williams v. Taylor, 529 U.S.

362, 412-13 (2000)), cert. denied, 534 U.S.1085 (2002).

The text of section 2254(d) establishes the state court’s

decision as the starting point in habeas review. Matteo v

Superintendent, SCI Albion, 171 F.3d 877, 885 (3rd Cir.), cert

denied sub nom Matteo v. Brennan, 528 U.S. 824 (1999).

Under the AEDPA’s standards of limited and deferential

review, “Federal courts may grant habeas relief to a state

prisoner on a claim only if the state court’s rejection of the

claim was ‘contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the

Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),

or ‘was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding,’

id. § 2254(d)(2). See Lomholt v. State of lowa, __ F.3d _.,

2003 WL 1961035, *2, No. 02-2236 (8th Cir. Apr. 29, 2003)

(slip op. at 4).

A state court’s decision is contrary to clearly established

Petitioner's assertions that the AEDPA does not apply

to his case, and that this Court erred in dismissing his original

petition for wnt of habeas corpus on July 1, 1996, are moot.

See First Amended Petition for Writ of Habeas Corpus, Claim

Twenty-Two, p. 41.

A-26

Supreme Court precedent when it is opposite to the Supreme

Court’s conclusion on a question of law or different than the

Supreme Court’s conclusion on a set of materially

indistinguishable facts. Williams, 529 U.S. at 412-13. A state

court decision involves an unreasonable application of Supreme

Court precedent if it correctly identifies the governing legal

rules but unreasonably applies them to the facts of a prisoner’s

case. Id. at 407; Linehan v. Milezark, 315 F.3d 920, 924 (8th

Cir. 2003). The Eighth Circuit has instructed, “As for an

‘unreasonable application’ of the law, we must remember that

unreasonable is not the same as incorrect. Penry v. Johnson,

121 S. Ct. 1910, 1918 (2001). The state court’s application

might be erroneous, in our ‘independent judgment,’ yet not

‘unreasonable.’ Williams, 529 U.S. at 411.” Kander _v.

Bowersox, 272 F.3d 532, 538 (8th Cir. 2001).

“The factual findings of the state court also may be

challenged in a § 2254 petition, but they are subject to an even

more deferential review. Relief may be granted if the state

court adjudication ‘resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2). Factual findings by the state court ‘shall be

presumed to be correct,’ 2 presumption that will be rebutted

only by ‘clear and convincing evidence.’ Id. § 2254(e)(1).”

Kinder, 272 F.3d at 538 .

Ill. Procedural Default.

“Federal habeas review is barred when a federal claim

has not been ‘fairly presented’ to the state court for a

determination on the merits.” Hall v. Delo, 41 F.3d 1248, 1249

(8th Cir. 1994) (quoting Jones v. Jerrison, 20 F.3d 849, 854 (8th

Cir. 1994) (other internal citations omitted)). Even if a federal

claim has been “fairly presented” to the state court, a federal

court generally will decline to consider the claim if the state

A-27

court denied it on “independent and adequate state procedural

grounds.” Coleman v. Thompson, 501 U.S. 722, 729-30

(1991); see also Sloan v. Delo, 54 F.3d 1371, 1378 (8th Cir.

1995) (“If a state court finds that a defendant defaulted a claim

under a state procedural rule, . . . federal courts generally will

not consider it on habeas review.”’), cert. denied, 516 U.S. 1056

(1996). “To bar consideration of a defaulted claim on federal

habeas review, the state’s procedural rule must have been

‘firmly established and regularly followed’ when it was applied

to the petitioner.” Sloan, 54 F.3d at 1380 (quoting Ford v.

Georgia, 498 U.S. 411, 421-25 (1991)).

“Missouri procedure requires that a claim be presented

‘at each step of the judicial process’ in order to avoid default.”

Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir. 1994), cert. denied,

513 U.S. 983 (1994) (quoting Benson v. State, 611 S.W.2d 538,

541 (Mo. Ct. App. W.D. 1980)). Claims that are not raised on

direct appeal or in postconviction Rule 29.15 proceedings or the

appeal thereof generally are barred. See LaRette v. Delo, 44

F.3d 681 (8th Cir.) (citing Kennedy v. Delo, 959 F.2d 112, 115-

16 (8th Cir.), cert. denied, 506 U.S. 857 (1992) (claims first

raised in motion to recall the mandate are barred), and Byrd v.

Delo, 942 F.2d 1226, 1231-32 (8th Cir. 1991) (claims first

raised in state habeas petition are barred)), cert. denied sub nom

LaRette v. Bowersox, 516 U.S. 894 (1995).

A Missouri court may “lift” the bar on an otherwise

procedurally defaulted claim by reviewing the claim on the

merits. Jolly, 28 F.3d at 53-54; Byrd, 942 F.2d at 1230. See

also Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“State

procedural bars are not immortal, however, they may expire

because of later actions by state courts. If the last state court to

be presented with a particular federal claim reaches the merits,

it removes any bar to federal review that otherwise might have

been available.”’)

A-28

Absent a decision by a state court to lift the bar on an

otherwise procedurally defaulted claim, a federal court will not

consider the claim unless the petitioner “can demonstrate cause

for the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider

the claims will result in a fundamental miscarnage of justice.”

Coleman, 501 U.S. at 750. “[{T]he existence of cause for a

procedural default must ordinarily tum on whether the prisoner

can show that some objective factor external to the defense

impeded counsel’s efforts to comply with the State’s procedural

rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). “Objective

factors that constitute cause include ‘interference by officials’

that makes compliance with the State’s procedural rule

impracticable, and ‘a showing that the factual or legal basis for

a claim was not reasonably available to counsel.” McCleskey

v. Zant, 499 U.S. 467, 494 (1991) (quoting Murray, 477 U.S. at

488 (internal citations omitted)).

IV. Statement of Facts.

The Court offers the following statement of facts,

adopted in its entirety from the opinion of the Missouri

Supreme Court, solely for informational purposes:

Prior to July 1987, Charles Taylor and

members of Daryl Shum’s family had been

involved in the ownership and operation of drug

houses. A federal drug prosecution had been

commenced against Daryl Shurn’s brothers,

Charles and Larry Shurn, in which Taylor was to

be a key witness. Taylor had worked for the

Shurns and held some of the Shurns’ drug

houses in his name.

On the morning of July 6, 1987, William

Weaver and Daryl Shum arrived at Taylor’s

A-29

home in the Mansion Hills apartment complex.

Their plan was to force Taylor to sign over the

Shurns’ crug properties which Taylor was

retaining in his name against the Shurns’ will.

After Taylor had signed the paperwork, Weaver

was supposed to kill Taylor. The plan was not

completely successful.

After Weaver and Shurn entered Taylor’s

apartment, Taylor unexpectedly pulled a gun

and escaped. Weaver and Shurn gave chase and

fired several shots at Taylor. Numerous

residents saw Weaver and Shurn running after

Taylor, shooting at him. Weaver and Shum

followed Taylor to a wooded area where Taylor

fell from his wounds. Weaver and Shurn went

back to the automobile. Then Weaver returned

to the wooded area where Taylor had fallen and

shot Taylor again. Taylor died from several

gunshot wounds to the head.

Weaver and Shum drove away from the

murder scene at a high rate of speed. Witnesses

at the scene immediately reported the incident to

police, giving a detailed description of the

vehicle. Shortly thereafter, police spotted the

Shurn vehicle and gave chase. Following a

collision during rush hour traffic on Interstate

70, Weaver and Shurn fled on foot. Shur was

captured at the scene, but Weaver ran off toward

the Hillcrest Apartment complex adjacent to the

highway. Not far away, another police officer

located Weaver running shoeless on a concrete

street, sweating profusely. On approach by the

officer, Weaver claimed he was jogging,

although he was many miles from home. He

A-30

claimed to be lost. Weaver was placed under

arrest and returned to the scene of the accident

where one of the orginal pursuing police

officers positively identified Weaver as the man

who ran away from the Shurn car after the crash.

While awaiting trial, Weaver was incarcerated

with a man by the name of Robert Dutch Tabler.

Tabler testified that Weaver told him he was a

hit man on the streets, that defendant and Shurn

had killed Charles Taylor, and that defendant’s

testimony at trial would be that he was merely

out jogging when the police stopped him.

Weaver’s primary defense at trial was

misidentification by police.

State v. Weaver, 912 S.W.2d at 507-08.

V. Discussion.

A. Claim Two: Improper Arguments by

Prosecutor.“

In his second claim for relief (Claims 2.B. through

2.M.), petitioner asserts that the prosecuting attorney made

improper statements in his guilt and penalty phase closing

arguments, which violated petitioner’s nght to due process on

the issue of punishment. Petitioner contends that the

prosecutor’s improper statements violated his nghts under the

Sixth, Eighth and Fourteenth Amendments. Petitioner asserts

that twelve separate statements were improper as either

*As previously stated, petitioner’s first claim, the Batson

claim, was addressed in the Memorandum and Order of August

9, 1999, and the subsequent appeal.

A-3]

injecting the prosecutor’s personal beliefs, threatening the jury.

appealing to jurors’ fears and emotions, arguing irrelevant and

immaterial issues, or arguing that defense counsel had tried to

create “smokescreens,” knowingly fabricated petitioner’s

defense, and had been involved in obtaining perjured testimony.

The subpoints of Claim Two are set forth and labeled in the

same manner as in the First Amended Petition:

B. As part of the initial guilt phase closing

argument, the prosecutor said, “He’s guilty as charged

and I think the evidence has proved it and | think he’s

guilty of murder in the first degree (Tr. 1645). ... But

it’s murder first degree or it’s nothing.” ...

“[Ijn my opinion, the only reason we’ve been

here is because the guilt is obvious. Your decision in

this case is trying to decide whether he should die or go

free. The guilt is obvious.” (Tr. 1647).

C. During the guilt phase rebuttal argument the

prosecutor said, “And, yet, | stand here afraid, afraid

that because Doris Black is so good and because you

people may get confused . . . If you do, then a hit man

goes free.” (Tr. 1713).

“Come on. All these coincidences you can’t

believe. It’s nonsense. If you don’t believe the state’s

case here, you twelve people will never convict

anybody.” (Tr. 1710).

“But in order for you to let him go, you’ve got to

believe that all this perjury was involved, that I was part

of it.” (Tr. 1721).

D. During the initial penalty phase argument,

the prosecutor said, “Well if this isn’t it, what would it

A-32

be? If this isn’t a case where you can impose a death

penalty, where people would go out to Mr. Taylor’s

house to kill him because he’s a witness, then what case

would you ever return it in? So if you were being

honest to me when you said that, then that has to be the

case.” (Tr. 1761).

“If this isn’t a case that calls for the death

penalty, I can’t imagine one that would. And, yet, you

people all told me in a given case you could do it.

Some of you even said you would prefer it, that you

would favor it in the right case. This is the night case ”

(Tr. 1762).

“I mean if this isn’t the case for the death

penalty, then there’s no case you'll do it.” (Tr. 1765).

E. The prosecutor continued during the penalty

phase rebuttal argument, “So, yeah, is there a possibility

he’s innocent? A possibility. I’m not going to deny

that, but that’s not what’s required by the law and that’s

not what we could live by. If that’s required, nobody

would ever be sentenced to die. We wouldn’t have a

death penalty. And, quite frankly, if you don’t sentence

him to die in this case, there’s no point in having a

death penalty.” (Tr. 1778).

F. During the penalty phase rebuttal argument,

the prosecutor stated, “Then I'll say what | said earlier.

If these facts don’t justify, don’t cry out for the death

penalty, then which facts do? If a cold-blooded hit on

behalf of drug scum isn’t enough for the death penalty,

then what facts justify it? I know there’s a movie,

Patton, and in the movie, George Patton was talking to

his troops because the next day they were going to go

out in battle and they were scared as young soldiers.

A-33

And he’s explaining to them that I know that some of

you are going to get killed and some of you are going to

do some killing tomorrow morning. And they all knew

that. And he was going to try to encourage them that

sometimes you've got to kill and sometimes you've got

to risk death because it’s right. He said: But tomorrow

when you reach over and put your hand in a pile of goo

that a moment before was your best friend’s face, you'l]

know what to do.” (Tr. 1782-83).

G. The prosecutor also argued during the

penalty phase rebuttal that a police officer and a witness

would have been killed if facts were different:

“William Weaver ran out of bullets. Think back to the

evidence. I’m sure you discussed it yesterday. But

when you discuss his fate, think about the evidence. He

ran out of bullets and Charles Taylor was still alive. So

when they go back, he’s reloading. All six spent

casings are on the floorboard nght where he was and

he’s reloading while Daryl is driving and they stop and

he goes back and shoots him some more. Then I’m

going to tell you that he was out of bullets, because if he

hadn’t been, Officer Crain would have been dead

because he would have kept the gun on him instead of

pitching it out of the car.”

H. After objection, the prosecutor continued, “If

he had still had the gun and still had bullets, do you

think he would have sure surrendered as meek as a

lamb? I mean, of course, he wouldn’t have surrendered.

What if Jean Henson would have been jogging a little

bit later than she was and . »ming around the woods or

the clearing at the time of the murder and he still had

some bullets. You think she would be alive?” (Tr.

1762-64).

A-34

|. During the guilt phase. the prosecutor argued,

“And now, of course, Mr. Weaver is here lying to you

and telling you he didn’t do it and wanting you to

believe that and hoping through the assistance of Ms.

Black--who is just about as capable a defense attorney

as you're going to find in these cases--that enough

confusion, enough smokescrs, «5, enough whatever has

been created to put in your mind some reasonable doubt

as to his guilt.” (Tr. 1645).

J. Over objection, the prosecutor continued,

“But as the case unraveled, I’m sitting there listening to

all this and I’ve got my back to you people, and | don’t

know what impact the things elicited by Ms. Black may

have had on you. I don’t know whether you think these

little mole hills that Ms. Black talked about are now

mountains in your mind or if they are still mole hills. |

don’t know whether the smokescreen she’s creating 1s

bothering you and creating an impression in your mind,

creating confusion or, you know, you see it’s nothing

more than a smokescreen and you're waiting to get to

the jury room to render a verdict of guilty.

“But at this point, you’ve heard all the evidence

you're going to hear. But that’s all you heard for four or

five days was a harangue to try to create confusion out

of nothing, to try to get a police officer to make one

little mistake which then makes him a liar, one

inconsistency, whatever, and they are liars; they are

perjurers. Just create whatever smokescreen you have.

So the last day or two, I’ve been concerned what impact

this is having on the jury.

“Well last night when I’m trying to decide

exactly what I’m going to say to you and | cleared all

the smoke away and all the harangue and all the noise,

A-35

you're left with nothing more than the facts.” (Tr.

1648-49).

K. The prosecutor stated, “And by the way, I’m

not even convinced the girl was having an affair with

him. I think they found a young girl and she may be

willing to come in here and be the heroine this week.

Ms. Black talked about her being so embarrassed, how

difficult it was for her to testify. She came back the

next day and sat in the first row and for three or four

more days. She’s the star of the show. She is the

heroine.” (Tr. 1665).

M. Finally, petitioner also objects to the

prosecutor's argument during the penalty phase that the

death sentence was appropriate due to petitioner's

connection to the Shurn family and their drug operation

(Tr. 1760, 1776, 1777), on the basis that there was no

evidence petitioner had knowledge of the Shum

family’s drug trade. Petitioner argues there are no facts

in the record to support the argument that petitioner

would have shot a police officer and a witness if he had

not run out of bullets (Tr. 1762-64). Petitioner argues

that the prosecutor’s argument the death penalty is a

deterrent (Tr. 1778-79), was without factual basis.

Petitioner argues the prosecutor’s “war on drugs”

argument (Tr. 1759, 1768, 1776-77, 1779, 1781) was

intended to appeal to the jury’s passions and inflame

them.

Petitioner presented the majority of these points to the

Missouri Supreme Court, which resolved the issues as follows:

Defendant argues that the state’s closing

arguments during both the guilt and penalty

phases were erroneous and further that counsel

A-36

was ineffective in failing to object to some of

the improper arguments. A review of the record

discloses that defense counsel objected

vehemently to almost all the arguments

complained of here and that several of the

objections were sustained, followed by curative

instructions to the jury. The trial court has

considerable discretion in allowing argument of

counsel, and the rulings are reversible only for

abuse of discretion where argument is plainly

unwarranted. State v. Armbruster, 641 S.W.2d

763, 766 (Mo. 1982). Our review of the

arguments discloses neither error in permitting

the arguments nor ineffective assistance of

counsel in failing to object.

A.

First, Weaver alleges that the prosecutor

improperly emphasized his position as elected

prosecutor in his choice of seeking the death

penalty. The specific arguments were as

follows:

(1) In the guilt phase, the prosecutor said, “If

you don’t believe the state’s case here, you

twelve people would never convict anybody.”

Defense counsel objected, and the court

instructed the jury to disregard the comment.

(2) In the penalty phase closing, the prosecutor

said, “Well, if this isn’t [the proper case for the

death penalty], what would it be? If this isn’t a

case where you can impose a death penalty,

where people go out to Mr. Taylor’s house to

kill him because he’s a witness, then what case

A-37

would you ever return itin? ... If this isn’t a

case that calls for the death penalty, | can’t

imagine one that would.” The court overruled

defense counsel's objection to this argument.

(3) Continuing his penalty phase closing

argument, the prosecutor said, “] mean, if this

isn’t the case for the death penalty, then there’s

no case you'll do it. . . and, quite frankly, if you

don’t sentence him to die in this case, there’s no

point in having a death penalty . . . I’m the

prosecuting attorney in this county, the top law

enforcement officer in the county. | decide in

which cases we ask for the death penalty and in

which cases we don’t.” The trial court sustained

the defendant’s objection to the last statement

and instructed the jury to disregard it.

(4) Finally, the prosecutor said, “If these facts

don’t justify, don’t cry out for the death penalty,

then which facts do?” To that statement, the

trial court overruled the objection.

A prosecutor’s argument may make

reasonable inferences from the evidence. Shurn,

866 S.W.2d at 460; State v. McDonald, 661

S.W.2d 497, 506 (Mo. banc 1983), cert. denied,

471 U.S. 1009, 105 S. Ct. 1875, 85 L.Ed.2d 168

(1985). The inferences need not necessarily

seem warranted. Grubbs v. State, 760 S.W.2d

115, 119 (Mo. bane 1988), cert. denied, 490

U.S. 1085, 109 S. Ct. 2111, 104 L.Ed.2d 672

(1989). Statements by a prosecuting attorney in

argument indicating his or her opinion that the

accused is guilty, where it is apparent that such

opinion is based on the evidence in the case, is

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permissible. State v. Moore, 428 S.W.2d 563,

565 (Mo. 1968); State v. Paglino, 319 S.W.2d

613, 625 (Mo. 1958). In this case, the

prosecutor’s rhetorical questions may seem

flamboyant, if not somewhat abrasive, to a

juror’s ears. However, given the eyewitness

testimony of how the murder was carried out

and the cold execution manner in which the

victim was killed, it is fair for the prosecutor to

point out the strength of the state’s case. The

use of the rhetorical questions was, for the most

part, a fair comment on the strength of the case.

As for his statements regarding his position as

prosecuting attorney of the county, the court

properly sustained the objections and directed

the jury to disregard the argument. Trial courts

have a superior vantage point from which to

assess the pervasive effect of an improper

argument. Thus, whether it can be dissipated by

timely and appropriate action short of declanng

a mistrial is a matter within the sound discretion

of the trial court. State v. Carter, 641 S.W.2d

54, 60 (Mo. banc 1982), cert. denied, 461 U.S.

932, 103 S. Ct. 2096, 77 L.Ed.2d 305 (1983).

This case is distinguishable from cases relied on

by the defendant, including State v. Evans, 820

S.W.2d 545 (Mo.App. 1991). There the

prosecutor said, “If [the defendant] were

innocent, | wouldn’t bring a charge.” Jd. at 547.

Merely stating that the prosecutor determines

which penalty to ask for in capital cases is not

the same as saying that if the defendant were

innocent, he would not be charged. The

objection, followed by the curative instruction,

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is adequate here.

In addition, this case is distinguishable from

Newlon v. Armontrout, 885 F.2d 1328 (8th Cir.

1989). There the court found that because the

prosecutor expressed his personal belief in the

propriety of the death penalty, emphasized his

position of authority in the county as prosecutor,

attempted to associate the defendant with

several well-known mass murderers, appealed to

the jurors’ personal fears and emotions, and

asked the jurors to “kill” the defendant, under

the totality of the circumstances rendered the

penalty phase of the trial fundamentally unfair.

885 F.2d at 1336-37. The arguments here do

not rise to the level of the egregious conduct that

is reported in Newlon. Neither is this case

comparable with State v. Storey, 901 S.W.2d

886 (Mo. banc 1995), where this Court reversed

the punishment in a capital case because the

prosecutor, among other excesses, had

compared the brutality of the murder as being

worse than all other murders in the county.

Here there was no abuse of discretion in the tnal

court’s ruling on defense counsel’s objections.

B.

In his closing remarks, the prosecutor called the

defendant’s misidentification defense a “cock

and bull story” and a “smokescreen,” referred to

the defendant as a liar, said defense counsel] was

“bold” and called in question the credibility and

motives of several defense witnesses. Weaver

characterizes the state’s closing arguments as

portraying defense counsel as having suborned

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perjury. Comments to the effect that a

defendant or a defense witness were lying have

repeatedly been upheld. A prosecuting attorney

may comment on the evidence and the

credibility of [a] witness and, in the process,

may belittle and point to the improbability and

untruthfulness of specific testimony. State v.

Johnson, 496 S.W.2d 852, 859 (Mo. 1973).

Here the comments on the testimony of the

witnesses were well within the range of the

prosecutor’s adversarial responsibilities in

making closing argument.

Directly arguing that defense counsel has

suborned perjury or fabricated evidence has

been held to be prejudicial error. State v.

Burnfin, 771 S.W.2d 908, 912-13 (Mo.App.

1989): State v. Harris, 662 S.W.2d 276, 277

(Mo.App. 1983). However, the prosecutor here

did not go that far when he said:

I don’t know whether the

smokescreen [defense counsel

is] creating is bothering you and

creating an impression in your

mind, creating confusion or, you

know, you see, it’s nothing more

than a smokescreen... .

[Defense counsel has] got the

nerve to show you these

photographs that she said look

like they were taken at

nighttime. | guess you just have

to believe with somebody that

bold that she is going to suggest

A-41

that was taken at night time as

opposed to bad exposure, if you

want to buy that boldness.

To suggest that the arguments advanced by

defense counsel are “smokescreens” or “bold”

fall far short of accusing counsel of suborning

perjury or the other egregious accusations

against defense counsel that occurred in Burnfin,

Harris, or other cases relied on by the

defendant. At most, the comments by the

prosecuting attorney were near error which, by

definition, is not error. The point is denied.

C.

Lastly, Weaver puts forth a collection of

allegedly improper arguments made by the state

during the punishment phase, including the

complaint that the prosecutor argued matters

outside the evidence that lacked evidentiary

Support. The prosecutor argued that had

Weaver not run out of bullets he would have

shot the arresting officer. He argued that if a

prosecution witness had been out jogging a short

while after the crime Weaver would have also

shot that witness. Finally, he argued that the

death penalty would be a deterrent. Our review

of the penalty phase arguments discloses that

these arguments are reasonable. The fact that

the cnme had been planned for the purpose of

killing a witness and for the purpose of

advancing what was apparently a very violent

drug enterprise, permits an inference that the

defendant had a high propensity for violent

conduct in the future. The claim that the trial

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court abused its discretion in permitting the

argument is without ment. The point is-denied.

See Respondent’s Ex. G, pp. 14-16; Weaver, 912 S.W.2d at

512-14.

The Court begins with the opinion of the Missouri

Supreme Court. Because the Missouri Supreme Court reached

the merits of petitioner’s claim, its determination that

petitioner’s nights were not violated is entitled to deference. 28

U.S.C. § 2254(d). Petitioner is not entitled to relief unless he

can demonstrate that the Missoun Supreme Court's resolution

was contrary to clearly established federal law or involved an

unreasonable application of that clearly established federal law.

28 U.S.C. § 2254(d)(2). See Linehan, 315 F.3d at 924.

Federal law regarding prosecutorial overreaching in

closing arguments is clearly established. The Supreme Court

has ruled it is not enough that a prosecutor’s comments were

undesirable or even universally condemned. In order to be a

constitutional violation, a statement by a prosecutor in closing

argument of the guilt phase must have “so infected the trial with

unfairness as to make the resulting conviction a denial of due

process.” Darden v. Wainwnght, 477 U.S. 168, 181 (1986)

(quoting Donnelly v. DeChnistoforo, 416 U.S. 637 (1974)). The

Eighth Circuit has stated with respect to improper penalty phase

argument, “it would seem that there should be a more searching

review of the penalty phase as the Eighth Amendment is

implicated.” Copeland v. Washington, 232 F.3d 969, 974 n.2

(8th Cir. 2000) (applying AEDPA standard, vacating death

sentence based on improper argument by prosecutor during

penalty phase), cert. denied, 532 U.S. 1024 (2001). The Court

in Copeland noted that the Eighth Circuit has vacated a death

sentence based on improper closing argument during the

penalty phase in three other recent cases. See Shurn v. Delo,

177 F.3d 662 (8th Cir.), cert. denied sub nom Shum v.

A-43

Bowersox, 528 U.S. 1010 (1999); Antwine v. Delo, 54 F.3d

1357 (8th Cir. 1995), cert. denied sub nom Bowersox _v.

Antwine, 516 U.S. 1067 (1996); Newlon v. Armontrout, 885

F.2d 1328 (8th Cir. 1989), cert. denied sub nom Delo _v.

Newlon, 497 U.S. 1038 (1990).

This Court will discuss separately the challenged

arguments in the guilt and penalty phases. The Court will also

consider the cumulative effect of the challenged arguments.

United States v. Young, 470 U.S. 1, 11-12 (1985) (to decide the

effect of a prosecutor’s remarks, a court examines the totality of

the circumstances and the remarks within the context of the

trial).

1. Guilt Phase.

Petitioner objects to a number of separate statements by

the prosecutor during the guilt phase closing argument and

rebuttal argument.

Petitioner argues that the prosecutor subjected the jurors

to improper argument by means of six statements which

asserted his personal beliefs and threatened the jury. The

statements at issue made during the initial closing argument are:

‘“He’s guilty as charged and | think the evidence

has proved it and I think he’s guilty of murder in

the first degree (Tr. 1644-45). ... But it’s

murder first degree or it’s nothing.” ... (Tr.

1645).

“(I)n my opinion, the only reason we're here [is]

because the guilt is obvious. Your decision in

A-44

this case is trying to decide whether he should

die or go free. The guilt is obvious.” (Tr.

1647).

Defense counsel objected to the second remark on the basis that

“the case is being tried to first determine guilt or innocence.”

(Tr. 1647). The trial court overruled the objection. (Iid.) Later,

the prosecutor stated:

But you have the option of saying not guilty. It

will be the biggest mistake of your life, but you

have that option. (Tr. 1665).

The statements at issue made during the rebuttal closing

argument are:

“Come on. All these coincidences you can’t

believe. It’s nonsense. If you don’t believe the

state’s case here, you twelve people will never

convict anybody.” (Tr. 1710).

Defense counsel objected to this argument on the grounds that

it was “totally improper to give that kind of threat to the jury.”

(Tr. 1710). The trial court sustained the objection, and on

defense counsel’s request struck the comment and instructed the

jury to disregard it. (Jd.) The prosecutor also stated:

“And, yet,' 1 stand here afraid, afraid that

because Doris Black is so good and because you

people may get confused .. . If you do, then a

hit man goes free.” (Tr. 1713).

Defense counsel objected to this argument on the grounds that

it was a threat to the jury, contrary to the tnal court’s

instructions, and was “just to elicit shock.” (Tr. 1713). The

trial court overruled the objection. (Tr. 1714). Finally, the

A-45

prosecutor stated:

“But in order for you to let him go, you’ve got

to believe that all this perjury was involved, that

I was part of it--” (Fr. 1721).

Defense counsel objected on the grounds that this argument was

improper, as the jury did not have to believe that the prosecutor

was part of a conspiracy to commit perjury in order to acquit the

petitioner. (Tr. 1721). The trial court overruled the objection.

(id.) Defense counsel then moved for a mistrial, which the trial

court denied. (Tr. 1722).

None of these six statements by the prosecutor were

presented to the Missouri Supreme Court. As a result, Claims

2.B. and 2.C. are procedurally defaulted and the Court’s

consideration of the claims is barred unless petitioner satisfies

either the “cause and prejudice” or “fundamental miscarriage of

justice” exceptions to procedural bar. Coleman, 501 U.S. at

750. Petitioner has made no showing of cause and prejudice,

nor has he made any demonstration of a fundamental

miscarriage of justice occurring from failure to consider his

claims. Schlup, 513 U.S. at 314-15. Therefore, dismissal of

Claims 2.B. and 2.C. is appropriate.

Moreover, if the Court were to reach the merits of the

claims, it would conclude plaintiff is not entitled to relief. In

Darden, the Supreme Court examined several factors in

determining whether prosecutorial misconduct at trial was so

egregious that it required a new trial as a matter of

constitutional law: (1) whether the prosecutor’s statement

manipulated or misstated the evidence; (2) whether the remarks

implicated specific rights of the accused such as the right to

counsel or the right to remain silent; (3) whether the defense

invited the response; (4) instructions given by the trial court; (5)

the weight of the evidence against the defendant; and (6) the

defendant’s opportunity to rebut. Darden, 477 U.S. at 181-82.

~

A-46

The prosecutor’s statements did not misstate the

evidence or implicate specific rights of the petitioner. Some of

the prosecutor’s statements were in response to defense

counsel’s attacks on the State’s evidence. The trial court

sustained some of defense counsel’s objections to the

prosecutor’s statements, and instructed the jury that arguments

of counsel were not evidence in the case. (Instruction No. 19,

L.F. at 133.) There was significant evidence against petitioner,

including the eyewitness testimony of several witnesses, albeit

only with respect to his general build and clothing; testimony

concerning petitioner’s apprehension while running barefoot in

Pasadena Hills far from his home, but not far from where Daryl

Shurn’s car was wrecked; testimony by Police Officer Gardiner

that petitioner was the same person he saw run from Shurn’s

wrecked car; uncontroverted testimony that petitioner’s car was

parked in the Mansion Hills apartment parking lot; and

testimony that petitioner’s keys were found in Daryl Shurn’s

wrecked car after the accident. Assuming the prosecutor

improperly injected his personal opinion into closing argument,

petitioner has not shown that the improper argument rendered

his trial fundamentally unfair. The Court cannot conclude that

but for the prosecutor’s improper remarks, the outcome of the

guilt phase would have been different, or that the prosecutor's

statements in closing argument of the guilt phase “so infected

the trial with unfairness as to make the resulting conviction a

denial of due process.” Darden, 477 U.S. at 181.

b. Clai dohes

In Claims 2.1., 2.J.,2.K. and 2.L., petitioner argues that

the prosecutor violated his due process rights by arguing that

defense counsel knowingly introduced perjured testimony and

fabricated petitioner’s defense, and by improperly injecting the

prosecutor’s personal belief that defense counsel was involved

with obtaining perjured testimony:

A-47

And now; of course, Mr. Weaver is here lying

to you and telling you that he didn’t do it and

wanting you to believe that and hoping through

the assistance of Ms. Black -- who is just about

as capable of a defense attorney as you’re going

to find in these cases -- that enough confusion,

enough smokescreens, enough whatever has

been created to put in your mind some

reasonable doubt as to his guilt. (Tr. 1645).

But as the case unraveled, I’m sitting

there listening to all this and I’ve got my back to

you people, and | don’t know what impact the

things elicited by Ms. Black may have had on

you. I don’t know whether you think these little

mole hills that Ms. Black talked about are now

mountains in your mind or if they are still mole

hills. I don’t know whether the smokescreen

she’s creating is bothering you and creating an

impression in your mind, creating confusion or,

you know, you see it’s nothing more than a

smokescreen and you’re waiting to get to the

jury room to render a verdict of guilty.

But at this point, you’ve heard all the

evidence you’re going to hear. But that’s all

you heard for four or five days was a harangue

to try to create confusion out of nothing, to try

to get a police officer to make one little mistake

which then makes him a liar, one inconsistency,

whatever, and they are liars; they are perjurers.

Just create whatever smokescreen you have. So

the last day or two, I’ve been concerned what

impact this is having on the jury?

A-48

Well, last night when I'm trying to

decide exactly what I’m going to say to you and

I cleared all the smoke away and all the

harangue and all the noise, you're left with

nothing more than the facts. (Tr. 1648-49).

And by the way, I’m not even convinced the girl

was having an affair with him. | think they

found a young girl and she may be willing to

come in here and be the hero this week. Ms.

Black talked about her being so embarrassed,

how difficult it was for her to testify. She came

back the next day and sat in the first row and for

three or four more days. She’s the star of the

show. She is the heroin[e]}. (Tr. 1665).

With respect to these statements, the Missouri Supreme

Court observed that prosecutors’ comments to the effect that a

defendant or a defense witness were lying have repeatedly been

upheld, and a prosecutor may comment on the evidence and the

credibility of the witnesses. The state court found the

prosecutor’s remarks in this case to be well within the range of

proper comment. The Missouri Supreme Court stated that

direct arguments defense counsel has suborned perjury or

fabricated evidence have been held to be prejudicial error, but

concluded the prosecutor in this case did not go that far. The

state court concluded the prosecutor’s arguments that defense

counsel had erected a “smokescreen” fell short of accusing

counsel of suborning perjury, and at most were “near error,

which by definition, is not error.” Weaver, 912 S.W.2d at 513-

14.

Prosecutors should refrain from personal attacks on

defense counsel. United States v. O'Connell, 841 F.2d 1408,

1428 (8th Cir.), cert. denied, 488 U.S. 1011 (1988).

A-49

Nonetheless, “Prosecutorial misconduct does not warrant

federal habeas relief unless the misconduct infected the tna!

with enough unfairness to render [petitioner’s] conviction a

denial of due process.” Roberts v. Bowersox, 137 F.3d 1062,

1066 (8th Cir. 1988) (citing Darden, 477 U.S. at 181), cert.

denied, 525 U.S. 1073 (1999). “Improper prosecutorial remarks

violate due process when there is a reasonable probability the

remarks affected the trial’s outcome.” Id. To decide the effect

of a prosecutor’s remarks, a court examines the totality of the

circumstances and the remarks within the context of the tnal.

United States v. Young, 470 U.S. at 11-12. Comments similar

to those made by the prosecutor in this case have been held not

to warrant habeas relief or require a new tral. See, e.g.

Roberts, 137 F.3d at 1066 (prosecutor’s argument which

questioned defense counsel’s honesty several times and referred

to the attorney’s failure to present certain evidence, even if

improper, did not violate due process); United States v. Finch,

16 F.3d 228, 232 (8th Cir. 1994) (direct appeal; government’s

argument that a witness was telling the truth and defense

counsel was trying to mislead the jury were not impermissible).

Based on the foregoing authority, and after examining

the totality of the circumstances including the weight of the

evidence against petitioner, the Court concludes petitioner has

not established that the decision of the Missouri Supreme Court

with respect to this issue resulted in a decision that was contrary

to or involved an unreasonable application of clearly established

federal law, as determined by the Supreme Court of the United

States. Linehan, 315 F.3d at 924. Moreover, the Court finds

that the state supreme court’s decision did not result in a

decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the state court

proceeding. Id. Therefore, petitioner’s § 2254 petition for

habeas corpus relief should be denied with respect to Claims

2.1., 2.J., 2.K. and 2.L.

2. Penalty Phase.

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In Claims 2.D., 2.E., 2.F.,2.G.,2.H. and 2.M., petitioner

objects to a number of statements by the prosecutor during the

penalty phase closing argument and rebuttal argument as

violating his due process mghts under the Fourteenth

Amendment and his nghts under the Sixth and Eighth

Amendments. Petitioner argues that the prosecutor’s remarks

impermissibly injected his personal opinions and beliefs,

threatened the jury, and appealed to the jurors’ fears and

emotions. Petitioner also argues that the prosecutor improperly

argued irrelevant and immaterial issues intended to inflame the

jury, which were not based on the evidence.

In the Eighth Circuit, there is a well-established analysis

for determining whether a prosecutor’s improper closing

argument during the penalty phase rises to the level of a due

process violation. Miller v. Lockhart, 65 F.3d 676, 683 (8th

Cir. 1995). A court should:

(1) measure the type of prejudice that arose from

the argument; (2) examine what defense counsel

did in his argument to minimize the prejudice;

(3) review jury instructions to see if the jury was

properly instructed: and (4) determine if there is

a reasonable probability that the outcome of the

sentencing phase would have been different,

taking into account all of the aggravating and

mitigating circumstances.

Antwine, 54 F.3d at 1363. As previously stated, the Eighth

Circuit has observed “it would seem that there should be a more

searching review of the penalty phase as the Eighth Amendment

is implicated.” Copeland, 232 F.3d at 974 n.2. The Eighth

Circuit has vacated a death sentence based on improper closing

argument during the penalty phase in four recent cases. See

Copeland, 232 F.3d 969; Shum, 177 F.3d 662 ; Antwine, 54

A-51

F.3d 1357; and Newlon, 885 F.2d 1328.°

a. Claim 2.D.

The challenged statements in Claim 2.D. began with the

following:

Well if this isn’t it, what would it be? If this

isn’t a case where you can impose a death

penalty, where people would go out to Mr.

Taylor’s house to kill him because he’s a

witness, then what case would you ever return it

in? So if you were being honest to [sic] me

when you said that, then that has to be the case.

(Tr. 1761).

Defense counsel objected to the argument as improper, arguing

that the prosecutor’s statement was threatening to the jury and

was intended to impose fear and intimidation on the jury in

order to get it to return a verdict of death. Defense counsel

asked the trial court to sustain her objection and instruct the jury

*This Court notes that the prosecutor in the instant case,

George “Buzz” Westfall, was also the prosecutor in the Shum

and Newlon cases. Mr. Westfall testified at the Rule 29.15

motion hearing that he tried three death penalty cases while he

was the prosecuting attorney: Newlon, Shurn, and Weaver.

Resp. Ex. D, Tr. on Appeal, Vol. 1, p. 115. The Eighth

Circuit’s decision in Newlon, which granted habeas corpus

relief partly because Mr. Westfall’s closing argument was found

to violate due process, was issued approximately five weeks

prior to the trial of the Weaver case. Mr. Westfall testified at

the Rule 29.15 motion hearing that he was aware prior to the

trial that Newlon had vacated Newlon’s sentence of death in

part because of his remarks in closing argument. Resp. Ex. D,

pp. 154-55.

A-S2

to disregard the statement, but the trial court refused. (Tr.

1762).

The prosecutor continued:

If this isn’t a case that calls for the death

penalty, | can’t imagine one that would. And,

yet, you people all told me in a given case you

could do it. Some of you even said you would

prefer it, that you would favor it in the right

case. This is the right case. (Tr. 1762).

Subsequently, the prosecutor stated:

] mean if this isn’t the case for the death penalty,

then there’s no case you'll do it. (Tr. 1765).

With respect to these statements, the Missouri Supreme

Court observed that a prosecutor’s argument may make

reasonable inferences from the evidence, even if the inferences

do not necessarily seem warranted. Weaver, 912 S.W.2d at

512. The state court said a prosecuting attorney in argument

may indicate his opinion that the accused is guilty, where it is

apparent the opinion is based on the evidence in the case. Id.

The state supreme court stated the prosecutor’s statements in

this case “may seem flamboyant, if not somewhat abrasive,” but

given the eyewitness testimony about how the murder was

carried out, the court concluded it was fair for the prosecutor to

- point out the strength of the state’s case. The court concluded

that the prosecutor’s use of rhetorical questions was, “for the

most part, a fair comment on the strength of the case.” Weaver,

912 S.W.2d at 513.

“An attorney’s personal opinions are irrelevant to the .

. . Jury’s task.” Newlon v. Armontrout, 693 F. Supp. 799, 804

(W.D. Mo. 1988) (quoting Brooks v. Kemp, 762 F.2d 1383,

1408 (1 1th Cir. 1985) (en banc)), aff'd, 885 F.2d 1328 (8th Cir.

1989), cert. denied, 497 U.S. 1038 (1990). Here, the prosecutor

A-53

repeatedly offered his opinion that the death penalty was the

only appropriate penalty, and that if the jurors had been honest

with him in responding to voir dire questioning, the jury must

return a verdict of death. This line of argument was improper

because it was intended to intimidate the jury into returning a

verdict of death. “Because the jury is empowered to exercise its

discretion in determining punishment, it is wrong for the

prosecutor to undermine that discretion by implying that he, or

another high authority, has already made the careful decision

required. This kind of abuse plays upon the jury’s susceptibility

to credit the prosecutor’s viewpoint.” Brooks, 762 F.2d at

1410.

“The prosecutorial mantle of authority can intensify the

effect on the jury of any misconduct.” Brooks, 762 F.2d at

1399. As a result, a prosecutor’s misconduct may be grounds

for reversal in part because of a “systemic belief that a

prosecutor, while an advocate, is also a public servant ‘whose

interest, therefore, in a criminal prosecution is not that it shall

win a case, but that justice shall be done.’” Id. (quoting Berger

v. United States, 295 U.S. 78, 88 (1935)). In Berger, the United

States Supreme Court stated it is as much a prosecutor’s “duty

to refrain from improper methods calculated to produce a

wrongful conviction as it is to use every legitimate means to

bring about a just one.” 295 U.S. at 88. The Supreme Court

discussed the tendency for the prosecutor to have an excessive

influence on the jury:

It is fair to say that the average jury, in a greater

or less degree, has confidence that these

obligations, which so plainly rest upon the

prosecuting attomey, will be faithfully observed.

Consequently, improper suggestions,

insinuations, and especially, assertions of

personal knowledge, are apt to carry much

weight against the accused when they should

properly carry none.

A-54

Berger, 295 U.S. at 88.

A review ofthe record shows that defense counsel chose

to focus her penalty phase argument on the possibility that the

jury had made an error in its guilt phase verdict; that if it were

later determined an error had been made, it could be corrected

if petitioner were in prison, but not if he had been executed; that

the jurors could certainly consider the penalty of life in prison,

even for this type of killing; that the jury should choose life

because they might be mistaken, because of the mitigating

circumstances that existed, including petitioner’s children and

ill mother, because of petitioner’s conduct during incarceration,

and because of the good things petitioner’s friends had said

about him; and that life in prison would be a terrible

punishment, “like a living death,” so that the jury would have

“sent [its] message” and “done [its] job.” Tr. on Appeal, Vol

V., pp. 1769-76. Thus, defense counsel chose not to devote her

argument to rebutting or challenging the prosecutor’s

statements to which she had earlier objected. According,

defense counsel’s argument did not serve to minimize any

prejudice that arose from the prosecutor’s statements. As

previously stated, the trial court instructed the jury that

statements of counsel are not evidence, and that they should be

guided by the evidence.

Considering all of the evidence and the record as a

whole, the Court cannot conclude that these improper

prosecutorial remarks alone affected the trial’s outcome, or

“infected the trial with enough unfairness to render

[petitioner's] conviction a denial of due process.” Roberts, 137

F.3d at 1066 (citing Darden, 477 U.S. at 181). Thus, the Court

concludes petitioner has not established that the decision of the

Missouri Supreme Court with respect to this issue resulted in a

decision that was contrary to or involved an unreasonable

application of clearly established federal law, as determined by

the Supreme Court of the United States. Linehan, 315 F.3d at

924. !

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b. Claims 2.G. and 2.H.

In Claims 2.G. and 2.H., petitioner challenges the

following statements of the prosecutor as improperly arguing

irrelevant and immaterial issues:

William Weaver ran out of bullets. Think back

to the evidence. I’m sure you discussed it

yesterday. But when you discuss his fate, think

about the evidence. He ran out of bullets and

Charles Taylor was still alive. So when they go

back, he’s reloading. All six spent casings are

on the floorboard right where he was and he’s

reloading while Daryl is driving and they stop

and he goes back and shoots him some more.

Then I’m going to tell you that he was out of

bullets, because if he hadn’t been, Officer Crain

would have been dead because he would have

kept the gun on him instead of pitching it out of

the car. (Tr. 1762-63).

Defense counsel objected to this argument as irrelevant and

prejudicial on the grounds that there was no evidence petitioner

had threatened Officer Crain or that he had a gun when he saw

Officer Crain. (Tr. 1763). The trial court overruled the

objection and the prosecutor continued:

If he had still had the gun and still had bullets,

do you think he would have sure surrendered as

meek as a lamb? I mean, of course, he wouldn’t

have surrendered. What if Jean Henson would

have been jogging a little bit later than she was

and coming around the woods or the clearing at

the time of the murder and he still had some

bullets. You think she would be alive? (Tr.

1763).

A-56

Defense counsel objected to this argument as improper on the

grounds that it was intended to invoke sympathy and outrage

from the jury, and that there was no evidence the person who

killed Taylor ever tried to kill Jean Henson. The trial court

overruled the objection. (Tr. | 763).

The Missouri Supreme Court concluded the prosecutor’s

argument that petitioner would have shot more people if he had

not run out of bullets was reasonable as the evidence presented

permitted an inference that petitioner “had a high propensity for

violent conduct in the future.” Weaver, 912 S.W.2d at 514.

This Court concludes these arguments are not a

reasonable inference based on the evidence presented in the

record. An argument that more people could have been killed

could be made in any case where cnminal violence has resulted

in death. The arguments were intended to play on the jurors’

emotions and inflame them. “When the sovereign takes the life

of one of its citizens, it is vital that ‘any decision to impose the

death sentence be, and appear to be, based on reason rather than

caprice or emotion.’” Newlon, 693 F. Supp. at 806 (quoting

Gardner v. Florida, 430 U.S. 349, 358 (1977)).

Nonetheless, considering all of the evidence and the

record as a whole, the Court cannot conclude that these

improper remarks alone affected the tnal’s outcome, or

“infected the trial with enough unfairness to render

[ petitioner’s] conviction a denial of due process.” Roberts, 137

F.3d at 1066 (citing Darden, 477 U.S. at 181). Thus, the Court

concludes petitioner has not established that the decision of the

Missouri Supreme Court with respect to this issue was contrary

to or involved an unreasonable application of clearly established

federal law, as determined by the Supreme Court of the United

States. Linehan, 315 F.3d at 924.

c. Claims 2.E. and 2.F.

In Claims 2.E. and 2.F., petitioner argues that the

A-57

prosecutor’s statements impermissibly injected his personal

beliefs and objections, threatened the jury, and appealed to

jurors’ fears and emotions:

So, yeah, is there a possibility he’s innocent? A

possibility. I’m not going to deny that, but

that’s not what’s required by the law and that’s

not what we could live by. If that’s required,

nobody would ever be sentenced to die. We

wouldn’t have a death penalty. And, quite

frankly, if you don’t sentence him to die in this

case, there’s no point in having a death penalty.

(Tr. 1778).

Defense counsel objected to this argument as improper and as

a misstatement of the law. The trial court sustained the

objection and granted defense counsel’s request to instruct the

jury to disregard the statement. (Tr. 1778).

Later, the prosecutor stated:

Then I'll say what I said earlier. If these facts

don’t justify, don’t cry out for the death penalty,

then which facts do? If a cold-blooded hit on

behalf of drug scum isn’t enough for the death

penalty, then what facts justify it?

I know there’s a movie, Patton, and in the

movie, George Patton was talking to his troops

because the next day they were going to go out

in battle and they were scared as young soldiers.

And he’s explaining to them that I know that

some of you are going to get killed and some of

you are going to do some killing tomorrow

morning. And they all knew that. And he was

going to try to encourage them that sometimes

you've got to kill and sometimes you've got to

msk death because it’s mght. He said: But

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tomorrow when you reach over and put your

hand in a pile of goo that a moment before was

your best friend’s face, you'll know what to do.

(Tr. 1782-83).

Defense counsel objected that the prosecutor’s argument was

improper and was intended to inflame and prejudice the jury.

The trial court overruled the objection. (Tr. 1782-83).

Both of these arguments were presented to the Missouri

Supreme Court, but that court did not discuss them specifically.

The state court distinguished the prosecutor’s remarks in this

case from more egregious remarks in other cases which did

render the trial fundamentally unfair, such as a prosecutor’s

comment that he would not bring a charge if the defendant were

innocent, State v. Evans, 820 S.W.2d 545, 547 (Mo. App. E.D.

1991), or a prosecutor’s comment that a murder was so brutal,

it was worse than all other murders in the county, State v.

Storey, 901 S.W.2d 886 (Mo. 1995) (en banc). The Missouri

Supreme Court also distinguished this case from Newlon v.

Armontrout, 885 F.2d 1328, on the basis that the prosecutor

there expressed his personal belief in the propriety of the death

penalty, emphasized his position of authority in the county as

prosecutor, attempted to associate the defendant with several

well-known mass murderers, appealed to the jurors’ persona!

fears and emotions, and asked the jurors to “kill” the defendant.

Weaver, 912 S.W.2d at 513. The court decided that although

the Eighth Circuit had concluded the totality of the

circumstances rendered the penalty phase in Newlon

fundamentally unfair, the arguments in this case did not nse to

that level. Id:

The prosecutor’s statement that if the jury did not return

a sentence of death there was no point in having the death

penalty, was improper for the same reasons discussed above

with respect to the similar statements made during the initial

penalty phase arguments. This constituted a statement of the

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prosecutor’s expression of personal belief in the propriety of the

death sentence for petitioner, and sought to intimidate the jury

into returning a verdict of death. The effect of the trial court’s

instruction to the jury to disregard the statement is difficult to

ascertain from the record, particularly as the court did not

sustain defense counsel’s objection to similar statements made

by the prosecutor earlier.

The second statement equates the jury’s task of reaching

a penalty verdict with the duties of soldiers during war, and

urges them to gather the courage necessary to do their duty of

sentencing the petitioner to death. Aspects of this statement,

which was not addressed by the Missouri Supreme Court, are

clearly improper as seeking to appeal to the jurors’ passions and

prejudices. The statement was “calculated to remove reason

and responsibility from the sentencing process.” Newlon, 885

*The Court includes the following quotation from the

record solely to show that the prosecutor’s intent in making this

argument was to inflame the jurors’ passions and disengage

their sense of rational, reasoned deliberation. This quotation

was not included in the record before the Missouri Supreme

Court, and does not figure into this Court's decision. After the

trial court overruled counsel’s objection to the prosecutor's

argument concerning Patton, the prosecutor continued and

concluded his rebuttal argument as follows:

He said, ““You’ll know what to do.” Well, last

July, Charles Taylor’s face was a pile of goo and

his brains were hanging out. You know what to

do. Yesterday, you made the decision with your

brain and you made the nght decision. Today,

you’ve got to reach down into your belly,

because that’s where the death penalty comes

from; it comes from your belly. You've got to

reach down there and say, William Weaver, we

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F.2d at 1338 (quoting Newlon. 693 F. Supp. at 808). The

Constitution requires juries to impose the death penalty in a

rational, deliberate manner. Shurn, 177 F.3d at 668 (Wollman,

J., concurring).

The prosecutor’s statement analogizing imposition of

the death penalty to killing in-war was permissible to the extent

it “implied that imposing death, while difficult, is at times

sanctioned by the state because of compelling reasons (national

secunty or deterring crime).” Brooks, 762 F.2d at 1412. The

prosecutor’s statement was improper in that the role of a capital

sentencing jury under Missouri law cannot be analogized to the

role of a soldier ordered to kill the enemy, as the jury is bound

to exercise broad discretion and independent judgment and

reason in reaching its verdict. See id.; Newlon, 693 F. Supp. at

806. “The main thrust of death penalty jurisprudence since

Furman v. Georgia, 408 U.S. 238 (1972), has been the need for

guided discretion in the sentencing body’s individualized

consideration of the capital defendant. See, e.g., Zant v.

Stephens, [462 U.S.862, 879 (1983)]. Conceiving of jurors as

soldiers undermines the crucial discretionary element required

by the Eighth Amendment.” Brooks, 762 F.2d at 1413.

The Court having carefully considered the record as a

whole concludes that this argument, permitted by the trial court

over defense counsel’s objection, “infected the trial with

enough unfairness to render [petitioner’s] conviction a denial of

due process.” Roberts, 137 F.3d at 1066 (citing Darden, 477

U.S. at 181). Although the statement occurred during final

rebuttal, “a single misstep on the part of the prosecutor may be

so destructive of the nght to a fair trial that reversal is

sentence you to die. You know what to do.

Please, have the courage to do it. Thank you.

Tr. on Appeal, Vol. V., p. 1783.

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mandated.” United States v. Cannon, 88 F.3d 1495, 1503 (8th

Cir. 1996) (internal punctuation and citation omitted). The jury

in this case was subjected to a “relentless, focused, uncorrected

argument . . . calculated to remove reason and responsibility

from the sentencing process.” Newlon, 885 F.2d at 1338

(quoting Newlon, 693 F. Supp. at 808).

Thus, the Court concludes plaintiff has established that

the decision of the Missouri Supreme Court with respect to this

issue resulted in a decision that involved an unreasonable

application of clearly established federal law, as determined by

the Supreme Court of the United States. Linehan, 315 F.3d at

924. This aspect of the prosecutor’s closing argument so clearly

violated petitioner’s due process rights by removing reason and

responsibility from the sentencing process and inflaming

passion and prejudice that it was unreasonable for the Missouri

Supreme Court to conclude there was no error.’

d. Claim 2.M.

Petitioner objects to the prosecutor’s arguments during

the penalty phase (1) that the death sentence was appropriate

due to petitioner’s connection to the Shurn family and their drug

operation (Tr. 1760, 1776, 1777), on the basis there was no

evidence petitioner had knowledge of the Shurn family’s drug

trade; (2) that the death penalty is a deterrent (Tr.1778-79), as

being without factual basis; and (3) concerning the “war on

drugs” (Tr. 1759, 1768, 1776-77, 1779, 1781), as being

intended to appeal to the jury’s passions and inflame them.

’The Court notes the Missouri Supreme Court did not

find that Mr. Westfal]’s closing arguments violated due process

principles in either Newlon or Shum, although the Eighth

Circuit Court of Appeals did. See State v. Newlon, 627 S.W.2d

606 (Mo. 1982) (en banc); State v. Shum, 866 S.W.2d 447

(Mo. 1993) (en banc).

A-62

The Court will not consider petitioner’s point in Claim

2.M. concerning the prosecutor’s argument linking him to the

Shurn family and its drug trade, because this point was not

raised before the Missouri Supreme Court, and as a result is

procedurally defaulted. See LaRette, 44 F.3d 681.

With respect to the death-penalty-as-deterrent argument,

the prosecutor stated dumng rebuttal penalty phase closing

argument:

We can’t bring Charles Taylor back to life, but

we can save other lives. The death penalty

deters. I’m convinced of that. People can argue

for a thousand years whether it does or not, but

I’m convinced it does. It doesn’t deter passion

killings. It doesn’t deter crazed people who kill.

But it deters business killings like this. If some

of those people really though they faced the

prospect of a death penalty, some of them

wouldn’t do it.

How do I ever prove to you with statistics how

many lives were saved? | mean the old analogy

is a lighthouse. I don’t know how many

shipwrecks a lighthouse prevents because we

don’t have statistics on those that don’t occur.

If it doesn’t occur, it doesn’t go down on paper.

Yet, many shipwrecks are avoided because of a

lighthouse. If a death penalty can save a life, we

don’t know because the murder won't occur.

We don’t have statistics of the innocent victims

that might be saved instead of being killed at the

hands of a convicted murderer. (Tr. 1778-79).

The Missoun Supreme Court found this argument to be

reasonable, based on the fact that the crime had been planned

for the purpose of killing a witness, and to advance “what was

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apparently a very violent drug enterprise[.]” Weaver, 912

S.W.2d at 514. The court concluded this evidence permitted an

infererice that petitioner had a high propensity for violent

conduct in the future. Id.

The Supreme Court has recognized the inconclusive

nature of scholarly debate on the deterrent effect of the death

penalty, and has stated that while capital punishment has “little

or no deterrent effect” on some murderers, it “undoubtedly” is

a significant deterrent for others. Gregg v. Georgia, 428 U.S.

153, 185-86 (1976). Therefore, the prosecutor’s argument

urging the jury to consider the deterrent effect of the death

penalty was not improper, and it was not necessary that the

prosecutor provide evidence to establish a link between the

death penalty and deterrence. See Brooks, 762 F.2d at 1409.

The Court concludes petitioner has not established that

the decision of the Missouri Supreme Court with respect to this

issue resulted in a decision that was contrary to or involved an

unreasonable application of clearly established federal law, as

determined by the Supreme Court of the United States.

Linehan, 315 F.3d at 924.

With respect to the “war on drugs” arguments, the

prosecutor stated during the initial penalty phase closing

argument:

It strikes mght at the heart of our system.

You've got to look beyond William Weaver.

This isn’t personal. This is business. You

people represent the entire community. You

represent society. You have to tell the Williams

Weavers and the Daryl Shurns of the world, and

you have to be willing to look them nght in the

eye when you do it, that there’s a point at which

we won’t allow you to go. And when you do,

prison’s too good. It’s the death penalty.

A-64

Sometimes killing is not only fair and justified;

it’s mght. Sometimes it’s your duty. There are

times when you have to kill in this life and it’s

the night thing to do. If Charles Taylor had been

able to get his gun out that day, would you have

said it was right for him to kill Weaver and

Shurn? Of course, you would. It would have

been self-defense. Well, it was right to kill then

and it’s nght to kill him now. (Tr. 1759)

(Emphasis added).

The prosecutor later stated:

This case — I guess it’s one that just cries out to

you to say protect the community. The drug

dealers, they are taking our streets away from

us. Are we going to take them back? Are we

going to let them have the streets or are we

going to fight back? If the drug peddlers are

going to run our community, then all is lost.

Then there’s no point in having jurors. The

death penalty applies in some cases. It applies

in this case.

When it comes time after Ms. Black talks to

you, I'll talk to you again briefly, and then

you’ve got to go to the jury room and you've

just got to toughen up and do what’s nght, even

though it’s going to be tough. You’ve got to say

this is bigger than William Weaver. It’s not

personal; it’s business. (Tr. 1768).

During rebuttal penalty phase argument, the prosecutor stated:

And I’m going to beg you for the entire

community and for society not to spare his life.

I'm going to beg you for the mght message

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instead of the wrong message. The right

message is life? For an execution? That’s the

right message? That’s the message you want to

send to the drug dealers, the dope peddlers and

the hit men they hire to do their dirty deeds:

Life in prison is what you get when we catch

you and convict you. Life in prison? That’s the

message you want to send to the scum of the

world? That when we catch you and we’re

convinced you’ re guilty, we’re going to give you

life in prison? That’s not the mght message.

(Tr. 1776).

The message has to be death for these types of

people. That’s the only message they are going

to understand.

The one thing you’ ve got to get into your head,

this is far more important then William Weaver.

This case goes far beyond William Weaver.

This touches all the dope peddlers and

murderers in the world. That’s the message you

have to send. It just doesn’t pertain to William

Weaver. It pertains to all of us, the community.

They are our streets, our neighborhoods, our

family. The message is death, not life. And

you’ve just got to geer [sic] yourself to that.

(Tr. 1777).

You’ve got to think beyond William Weaver.

As I told you earlier, this is our worst nightmare.

This is society’s worst nightmare. If they could

kill witnesses and we don’t execute them in

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exchange, then there’s no deterrence. Then the

whole system fails and then chaos reigns and

Our streets are never safe. The dope peddlers

reign and people like William Weaver do. (Tr.

1779).

*_e* © @ @

It’s bigger than William Weaver. And you’ve

got to have the guts to do it. I'm the

Prosecuting Attorney in this county, the top law

enforcement officer in the county. | decide in

which cases we ask for the death penalty and in

which cases we don’t. (Tr. 1781-82).

Defense counsel objected to the last argument as improper

because it was personalizing the case. The trial court sustained

the objection and granted defense counsel's request to instruct

the jury to disregard the last comment. (Tr. 1782).

The Missouri Supreme Court concluded that while the

remarks concerning the prosecutor’s position as prosecuting

attomney of the county were improper, defense counsel’s

objections were properly sustained, and the curative instruction

given to the jury to disregard the remarks was sufficient to

avoid depriving the defendant of a fair tnal. Although the “war

on drugs” argument was presented to the Missouri Supreme

Court, that court did not specifically address the issue. The

court stated, “Lastly, Weaver puts forth a collection of allegedly

improper arguments made by the state during the punishment

phase,” Weaver, 912 S.W.2d at 514, and discussed several

points, but did not devote any discussion to the “war on drugs”

point. The Court will address the merits of this claim. See

Coleman, 501 U.S. at 732-35 (in the absence of a clear and

express statement declaring otherwise, an ambiguous state court

decision is presumed to be made on the basis of the court’s

belief that federal law required such decision, thus permitting

A-67

the federal habeas court to address the petition).

It is clear that a prosecutor may ask jurors to act as the

“conscience of the community” as long as the comments are not

intended to inflame the passions of the jury. United States v.

Koon, 34 F.3d 1416, 1444 (9th Cir. 1994), aff'd in part and

rev'd in part, 518 U.S. 81 (1996); United States v. Sanchez-

Sotelo, 8 F.3d 202, 211 (Sth Cir. 1993), cert. denied, 511 U.S.

1023 (1994); United States v. Johnson, 968 F.2d 768, 770 (8th

Cir. 1992). Prosecutors in drug cases “may stress to the jury the

seriousness of drug charges and comment on the gravity of this

county’s drug problem.” United States v. Dominguez, 835 F.2d

694, 700 (7th Cir. 1987), cert. denied, 485 U.S. 965 (1988).

Prosecutors may not, however, argue that a jury should convict

to make a statement against crime in general or to deter future

crime as a matter separate and apart from the issue of the

defendant’s guilt. This kind of argument is improper because

[t]he amelioration of society’s woes is far too heavy a burden

for the individual criminal defendant to bear.” United States v.

Monaghan, 741 F.2d 1434, 1441 (D.C. Cir. 1984), cert. denied,

470 U.S. 1085 (1985). Explicit references to the jury “making

a statement” are patently inappropriate because they invite the

jury to satisfy its passions by looking beyond the evidence

before it in rendering a verdict. See, e.g., Arrieta-Agressot v.

United States, 3 F.3d 525, 527 (lst Cir. 1993) (vacating

conviction where the prosecutor throughout closing argument

“urged the jury to view this case as a battle in the war against

drugs, and the defendants as enemy soldiers”); Johnson, 968

F.2d at 771 (Eighth Circuit held improper the prosecutor's

exhorting jury in drug case to act as a “bulwark against .

putting this poison on the streets”); United States v. Solivan,

937 F.2d 1146, 1148 (6th Cir. 1991) (holding improper the

prosecutor’s comment, “And I’m asking you to tell her and all

of the other drug dealers like her that we don’t want that stuff

in Northern Kentucky .. .”).

In this case, the prosecutor’s comments clearly and

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repeatedly crossed the line of propriety and were unduly

inflammatory and improper. The prosecutor stated on

numerous occasions that the jury should look beyond the

petiticr, and told them, “This isn’t personal. This 1s

business.’ The gist of the prosecutor's argument is captured in

the following quotation:

[T)his is far more important then William

Weaver. This case goes far beyond William

Weaver. This touches all the dope peddlers and

murderers in the world. That’s the message you

have to send. It just doesn’t pertain to William

Weaver. It pertains to all of us, the community.

Tr. on Appeal, Vol. V., p. 1777.

This type of argument is highly improper because it

seeks death for petitioner in order to send a message to the

broad society of drug dealers and murderers not only in St.

Louis, but the entire world. Petitioner thus bears the burden of

all drug dealers and murderers. This undermines the crucial

requirement that sentencing considerations be individualized by

introducing the improper suggestion that petitioner be killed

merely to send a message to others. See Brooks, 762 F.2d at

1413.

In addition, interspersed with the prosecutor’s “send a

message” arguments were two other highly improper

arguments. First, the prosecutor told the jury “it’s right to kill

him now.” (Tr. 1759) The Eighth Circuit found a similar

statement to be prejudicial and improper in both Newlon, 885

F.2d at 1335, and Shurn, 177 F.3d at 667. Judge Wollman,

concurring in the Shurn opinion, stated:

To me, the statements “[K]ill him now. Kill

him now,” and “Kill Daryl Shurn” are an appeal

to blood lust and mob justice rather than a cal!

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for the jury to return a sentence of death after

calm, reasoned deliberation. This stndent

appeal to primitive emotion could not have done

other than to touch the raw nerve of vengeance

that lies within us all. The resulting diminution

of the jury's sense of responsibility under mined

the Eighth Amendment’s heightened need for

the responsible and reliable exercise of

sentencing discretion in capital cases.

Shurn, 177 F.3d at 668. As the Supreme Court has instructed,

the constitution requires that “any decision to impose the death

sentence be, and appear to be, based on reason rather than

caprice or emotion.” Gardner vy. Florida, 430 U.S. at 358.

Second, the prosecutor emphasized his position of

authority by stating that he was the “prosecuting attorney in this

county, the top law enforcement officer in the county. | decide

in which cases we ask for the death penalty and in which cases

we don’t.” Tr. on Appeal, Vol. V., pp. 1781-82. It 1s improper

for a prosecutor to tell a jury that an authoritative source has

deemed the death penalty appropriate in a particular case,

because this creates a danger the jury will defer to an expert's

legal judgment in its choice of penalty. See Drake v. Kemp,

762 F.2d 1449 (11th Cir. 1985), cert. denied, 478 U.S. 1020

(1986); see also Brooks, 762 F.2d at 1410 (“Because the jury is

empowered to exercise its discretion in determining

punishment, it is wrong for the prosecutor to undermine that

discretion by implying that he, or another high authority, has

already made the careful decision required. This kind of abuse

plays upon the jury’s susceptibility to credit the prosecutor’s

viewpoint.”’)

The Court having carefully considered the record as a

whole, concludes that the “war on drugs” arguments “infected

the trial with enough unfairness to render [petitioner’s]

conviction a denial of due process.” Roberts, 137 F.3d at 1066

A-70

(citing Darden, 477 U.S. at 181). The jury in this case was

subjected to a “relentless, focused, uncorrected argument .. .

calculated to remove reason and responsibility from the

sentencing process.” Newlon, 885 F.2d at 1338 (quoting

Newlon, 693 F. Supp. at 808).

Thus, the Court concludes plaintiff has established that

the decision of the Missouri Supreme Court, which implicitly

found the “war on drugs” argument constitutionally permissible,

involved an unreasonable application of clearly established

federal law as determined by the Supreme Court of the United

States. Linehan, 315 F.3d at 924. This aspect of the

prosecutor’s closing argument clearly violated petitioner’s due

process rights by removing reason and responsibility from the

sentencing process, inflaming passion and prejudice, and

drawing the jury’s attention away from the individualized

decision it was required to make with respect to petitioner. As

a result, it was unreasonable for the Missouri Supreme Court to

conclude there was no constitutional error.

3. Totality of the Circumstances.

in order to decide the effect of the prosecutor’s improper

remarks, the Court now examines the totality of the

~ circumstances and the remarks within the context of the entire

penalty phase. See United States v. Young, 470 U.S. at 11-12.

During the penalty phase, the prosecutor argued his personal

opinions, improperly urged the jury to disregard the individual.

circumstances of the petitioner and instead to send a message to

all drug dealers and murderers everywhere, repeatedly appealed

to the jurors’ fears and emotions, told them to kill petitioner,

emphasized his position of authority, analogized the role of the

capital sentencing jury to that of soldiers carrying out duties in

wartime, and argued irrelevant and immaterial issues in an

attempt to inflame the jury’s passions and prejudices. The

arguments in this case bear many similanties to the arguments

in Newlon and Shur, which the Eighth Circuit found to violate

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the due process rights of the petitioners in those cases.

The majority of defense counsel's objections to the

improper arguments were overruled. The prosecutor’s remarks

during the rebuttal penalty phase argument were not invited by

defense counsel, and counsel had no opportunity to respond to

these arguments except by objection. The prosecutor’s improper

remarks were so many and so permeated the penalty phase

arguments that “(t]he improper argument would have had a

significant prejudicial effect on the jurors[,]” Copeland, 232

F.3d at 975, even though the jury was instructed that arguments

of counsel are not evidence. The prosecutor’s remarks were not

isolated, but rather “formed the crux of the prosecutor’s

argument for imposing the death penalty.” Copeland, 232 F.3d

at 975. The evidence against petitioner in this case was strong

but not overwhelming, as defense counsel did a creditable job

of calling into question the eyewitnesses’ descriptions of the

shooter, in particular focusing on the discrepancy between the

color of the shooter’s clothing and the color of petitioner’s

clothing. Several mitigating circumstances were submitted for

the jury’s consideration. The jury agreed on punishment after

five hours of deliberation, but did so only after being subjected

to a “relentless, focused, uncorrected argument . . . calculated

to remove reason and responsibility from the sentencing

process.” Newlon, 885 F.2d at 1338.

Applying the appropriate standard of review to the

instant case, the Court concludes that the prosecutor’s penalty

phase closing argument so infected the trial with unfairness as

to make the resulting sentence of death a denial of due process.

it was unreasonable for the Missouri Supreme Court to

conclude, in light of Supreme Court precedent, that the

argument did not result in a deprivation of due process.

Copeland, 232 F.3d at 975. For the foregoing reasons, the

Court concludes petitioner has established that the decision of

the Missoun Supreme Court with respect to the totality of the

penalty phase closing argument involved an unreasonable

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application of clearly established federal law as determined by

the Supreme Court of the United States. Linehan, 315 F.3d at

924. Therefore, petitioner's § 2254 petition for habeas corpus

relief should be granted with respect to the foregoing aspects of

Claim Two concerning the penalty phase.

B. Claim Three - Prosecuting Attorney’s

Investigator Posing as Juror.

Petitioner argues that his conviction occurred in

violation of his Sixth, Eighth and Fourteenth Amendment nights

as_a result of an investigator for the prosecuting attorney’s

office posing as a juror and mingling with the jurors for several

days. Petitioner states that during jury selection, the

investigator wore a juror badge and provided “security” because

he believed that individuals coming into the courtroom might

be concealing guns. The investigator’s concern was conveyed

to the prosecuting attorney. The trial court was then advised,

and announced in open court that anyone returning to the

courtroom would be searched. Petitioner asserts that the mere

fact an investigator for the prosecuting attorney's office placed

himself in a position which allowed him to mingle with jurors

on a death penalty case for several days is misconduct which

requires reversal due to structural error.

Petitioner asserts that one juror who served on the case,

Mr. Smith, knew the investigator, as they had worked together

at a medical center. The juror also knew the investigator

worked for the prosecuting attomney’s office. There was

evidence Juror Smith approached the investigator and spoke to

him. Petitioner asserts that the juror’s actions combined with

the investigator's conduct created an atmosphere of undue

influence, and that it is doubtful the juror gave due and fair

consideration to the facts as a result of his acquaintance with the

investigator, and the investigator’s presence to provide

“security.”

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Petitioner asserts the trial court erred and violated his

Fourteenth Amendment due process nghts by refusing to

conduct a hearing into the investigator’s misconduct, when

petitioner’s counsel requested a hearing prior to the guilty phase

closing argument and again prior to the penalty phase

arguments. Petitioner also asserts that the State has not met its

burden to show that prejudice did not result from the contact

between the investigator and the juror, citing United States v.

Hall, 85 F.3d 367, 371 (8th Cir. 1996).

Petitioner presented this issue to the Missouri Supreme

Court and the issue was resolved by that Court as follows:

In his third point, Weaver complains that the

trial court erred in failing to grant either a

hearing before the verdict or a new trial after it

was disclosed that the state’s investigator,

Lawrence Freeman, posed as a juror, wore a

juror button, and mingled with the venire panel

during the first day of jury selection either while -

the members of the venire panel were in the

hallway outside the courtroom or in a jury

assembly area on a separate floor.

During the early stages of the trial, Freeman

became alarmed by a group of persons he

believed to be members of the Weaver family

who were standing near the courtroom where

jury selection was taking place. According to

Freeman, both men and women were carrying

Gucci bags or purses capable of concealing

weapons. Freeman responded by obtaining a

juror badge from one of the court’s staff in order

to “provide security.” While wearing the juror

badge, Freeman was watching the persons near

the courtroom door when he was approached by

Mr. Smith, one of those who was ultimately

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selected to serve as a juror. Smith spoke to

Freeman but was told by Freeman that he could

not talk because Freeman had been called to jury

duty. Freeman claimed to have gotten word to

the prosecutor about the bags. who informed the

judge. When the judge announced that all

persons entering the courtroom would be

searched, the persons with the bags left.

Defense counsel observed Smith and Freeman

talking, knew Freeman was an investigator for

the prosecutor, and also knew that Smith was a

juror. However, she did not bring her

information to the attention of the trial judge

prior to the trial by moving to strike Smith for

cause and did not use a peremptory strike to

remove Smith from the jury. Defense counsel

first brought the matter to the attention of the

trial judge during the instructions conference.

The trial judge was concerned that an

interrogation of the jurors at that time about

what had occurred before the trial might be

disruptive and so did not take immediate action.

After the jury had completed its deliberations,

the trial judge inquired before the jurors were

discharged if any of them had contact with

Freeman during the trial or whether Freeman

had attempted to make any effort to discuss with

any of them anything regarding the case. Juror

Smith replied, “I know him. I spoke to him

before the trial.”” There is nothing in the record

to indicate that Freeman spoke with Smith about

the subject matter of the trial.

Without a doubt, the court employee who gave

the juror button to Freeman should be

reprimanded, and Freeman’s conduct was

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thoughtless, if not bizarre. Trial judges,

lawyers, and those who are assigned to provide

security and look after the needs of jurors while

they are being selected, hearing evidence or

deliberating must constantly guard against any

outside influence or distraction.

Nevertheless, Freeman’s actions do not rise to

the level of State v. Post, 804 S.W.2d 862

(Mo.App. 1991), where a deputy sheriff and a

police officer not assigned to the case mingled

with jurors at their hotel rooms, and one deputy

and a juror engaged in sexual improprieties such

that the jury had been so distracted that it could

not give “due and fair consideration of the

facts.” Jd. at 862-63.

Where misconduct involving jurors during the

progress of the trial is alleged, the verdict will

be set aside unless the state affirmatively shows

that the jurors were not subject to improper

influences. State v. Edmondson, 461 S.W.2d

713, 723 (Mo. 1971). In this case, where the

facts are fully disclosed and they conclusively

demonstrate an absence of prejudice to the

defendant and an absence of any improper

intluence on the juror in question there is no

prejudice. Under these circumstances, Weaver

is not entitled to a new trial.

Resp. Ex. G at 13-14; Weaver, 912 S.W.2d at 511-12.

The Court begins its analysis with the Missouri Supreme

Court’s opinion. Because the Missouri Supreme Court reached

the merits of petitioner’s claim, its determination that

petitioner’s nghts were not violated is entitled io deference. 28

U.S.C. § 2254(d). Petitioner is not entitled to relief unless he

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can demonstrate that the Missour Supreme Court's resolution

of the issue was contrary to clearly established federal law or

involved an unreasonable application of that clearly established

federal law. 28 U.S.C. § 2254(d)(1). See Linehan, 315 F.3d at

924. The Missoun Supreme Court’s factual findings are

presumed to be correct, unless petitioner can show clear and

convincing evidence to rebut the presumption. 28 — S.C. §

2254(e)(1); Kinder, 272 F.3d at 538.

The Sixth Amendment guarantees a cnminal defendant

the nght to an impartial jury. Pnvate communications between

an outside party and a juror raise Sixth Amendment concerns.

See Parker v. Gladden, 385 U.S. 363, 364 (1966) (per curiam).

In the direct appeal context, the Supreme Court has stated that

“any private communication [or] contact... with a juror during

a tnal about the matter pending before the jury is .. .

presumptively prejudicial, if not made in pursuance of known

rules of the court and the instructions and directions of the court

made during the tnal, with full knowledge of the parties.”

Remmer v. United States, 347 U.S. 227, 229 (1954); see United

States v. Caldwell, 83 F.3d 954, 956 (8th Cir. 1996) (same).

The Supreme Court has made clear, however, that “due process

does not require a new trial every time a juror has been placed

in a potentially compromising situation.” Smith v. Phillips, 455

U.S. 209, 217 (1982). Instead, “[d]ue process means a jury

capable and willing to decide the case solely on the evidence

before it, and a trial judge ever watchful to prevent prejudicial

occurrences and to determine the effect of such occurrences

when they happen.” Id.

The Eighth Circuit has stated that in the habeas context,

Remmer does not establish a rule that any extrajudicial

communication with a juror is presumed to deprive a cnminal

defendant of due process under the Fourteenth Amendment.

Boykin v. Leapley, 28 F.3d 788, 790 (8th Cir. 1994); see also

Fullwood v. Lee, 290 F.3d 663, 677 (4th Cir. 2002) (applying

Remmer in habeas context: holding that when a habeas

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petitioner bases a juror bias claim on improper communication

between a juror and a nonjuror, “he must first establish both

that an unauthorized contact was made and that it was of such

a character as to reasonably draw into question the integrity of

the verdict .... [T]he government [then] bears the burden of

demonstrating the absence of prejudice.”’), cert. denied, 123 S.

Ct. 890 (2003).

In a § 2254 habeas proceeding, “a federal court’s review

of alleged due process violations stemming from a state court

conviction is narrow.” Hamilton v. Nix, 809 F.2d 463, 470 (8th

Cir.), cert. denied, 483 U.S. 1023 (1987). Different standards

and burdens of proof apply when federal courts consider direct

appeal claims in federal criminal trials and habeas corpus

review of state criminal convictions. Id.,n.4. “Thus, not every

trial error that might result in reversal of a federal conviction on

direct appeal would mandate the same result in a § 2254 review

of a state court conviction, where we may consider only errors

of constitutional magnitude.” 1d.*

The Missouri Supreme Court found there was no

evidence in the record to show that the investigator had spoken

with Juror Smith about the subject matter of the case. The

Court concluded that while the investigator’s conduct was

improper, petitioner had not been prejudiced by it. The record

shows that after the verdict was rendered, the trial judge

inquired whether any of the jurors had been approached by

Larry Freeman during the trial, and whether he had spoken to

them. Juror Smith answered that he knew Freemen, and spoke

“The cases petitioner relies on are all direct criminal

appeals, and as such, are not controlling. See Tumer vy.

Louisiana, 379 U.S. 466 (1965); United States v. Hall, 85 F.3d

367, 371 (8th Cir. 1996); United States v_ Caldwell, 83 F.3d

954 (8th Cir. 1996); United States v. Delaney. 732 F.2d 639,

642 (8th Cir. 1984).

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to him before Smith had been selected as a juror and before the

case began. Smith denied that he spoke to Freeman about the

case. Tr., Vol. V, pp. 1786-87. Upon further questioning by

petitioner’s tnal counsel, Juror Smith stated the conversation

with Freeman consisted of only general topics: “Oh, just how

you been doing and hadn’t seen him since the last time I was

here because | sometimes bring patients here and | run into him.

Nothing concerning this.” Id. at 1787.

The most petitioner can establish is that a conversation

took place between the investigator, Freeman, and Juror Smith.

Petitioner has not established either that the conversation

concerned the trial, or that he was actually prejudiced. Where

a habeas petitioner does not “establish this threshold condition,”

Remmer is inapplicable. O’ Dell v. Armontrout, 878 F.2d 1076,

1080 (8th Cir. 1989), cert. denied, 493 U.S. 1037 (1990).

Petitioner has not established that the decision of the

Missoun Supreme Court with respect to this issue resulted in a

decision that was contrary to or involved an unreasonable

application of clearly established federal law, as determined by

the Supreme Court of the United States. Lomhoit, 2003 WL

1961035, *2. Moreover, the Court finds that the Missouri

Supreme Court’s decision did not result in a decision that was

based on an unreasonable determination of the facts in light of

the evidence presented in the state court proceeding. Kunder,

272 F.3d at 538. Therefore, petitioner’s § 2254 petition for

habeas corpus relief will be denied with respect to Claim Three.

C.-E. Claims Four, Five and Six - Brady

Violation - Prosecutor’s Failure to Disclose

Agreement with Witness; Failure to Disclose

Police Dispatch Tape; Failure to Disclose

Description of Suspect.

Petitioner argues that his conviction occurred in

violation of his Sixth, Eighth and Fourteenth Amendment and

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due process nghts because the prosecutor failed to disclose

pnor to trial the entire agreement between a State’s witness,

Robert “Dutch” Tabler, and the State and all circumstances that

would affect the witness’ credibility. Tabler testified at trial

that petitioner admitted he was a “hit man” who along with

Daryl Shurn had killed Charles Taylor because Taylor was a

potential witness against one of Shurn’s brothers, and that

petitioner’s defense at trial would be misidentification.

Petitioner asserts that the following material impeachment

information was not disclosed: (1) The prosecutor’s original

recommendation was a five-year sentence to be served

consecutively to Tabler’s parole revocation; (2) the original

bond was set at $500,000 and the prosecutor filed a motion

requesting the bond not be reduced or satisfied by a percentage

or property bond; (3) the prosecutor informed Tabler’s defense

attorney that he would consider recommending early release in

exchange for Tabler’s testimony; and (4) Tabler had used a

false name when arrested.

Petitioner presented this issue to the Missoun Supreme

Court and the issue was resolved by that Court as follows:

Weaver complains that the prosecutor failed to

disclose all evidence favorable to the accused in

response to his pretrial requests. The details of

the state’s response to Weaver’s pretrial request

were not included in the defendant’s record filed

on appeal. Neither was the response to the

request presented at the post-conviction hearing.

As best can be determined from the record, the

following apparently was disclosed to defense

counsel prior to trial:

Tabler had been an inmate at the St. Louis

County Correctional Facility for nine months

prior to tnal. Charges were pending against him

for receiving stolen property and a misdemeanor

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offense for possession of marijuana. His prior

convictions included sodomy and oral

copulation in 1980 in California, for which he

was sentenced to three years in prison and

served two, rape in 1983 in California, upon

which he received a three-year sentence and

served twenty-two months in prison, and a

possession of methamphetamines conviction in

1986 in California for which Tabler received six

months, four of which were served. It was also

disclosed that Tabler was on parole from the

state of California at the time of trial and was

facing approximately a year and a half in prison

there. Finally, it was disclosed that Tabler had

made a deal with the state that in exchange for.

his testimony, the state would recommend a year

for the receiving stolen property charge and six

months for the possession of marijuana charge.

The record also disclosed that Tabler had been

charged as a persistent offender and was subject

to an extended term of up to sixteen years but,

because of the agreement made by the state,

Tabler knew he could possibly get out of prison

in five months time.

Weaver complains here that his constitutional

right to a fair trial was violated because the state

failed to disclose, in addition to the above, and

(2) prior to the time Tabler came forward with

the information about Weaver, he had been

offered a five year sentence; (2) Tabler gave a

false name when initially arrested; and (3)

Tabler’s bond had been set at $500,000.

The United States Supreme Court has held that

the suppression by the prosecution of evidence

favorable to an accused upon request violates

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due process where the evidence is material

either to guilt or punishment, irrespective of the

good faith or bad faith of the prosecution.

Brady v. Maryland, 373 U.S. 83, 87 (1963). A

due process violation occurs “if there is a

reasonable probability that, had the evidence

been disclosed to the defense, the result of the

proceeding would have been different.” United

States v. Bagley, 473 U.S. 667, 676 (1985). A

reasonable probability of a different outcome

exists where the failure to disclose the evidence

“undermines confidence in the outcome of the

trial.” /d. at 682. Considering the information

that was disclosed by the state showing Tabler

to have been convicted of multiple contemptible

crimes and that his testimony was given in

exchange for an extremely generous deal by the

state makes the failure to disclose complained of

by the defendant pale in comparison. The

absence of the ailegedly undisclosed evidence

does not undermine confidence in the verdict.

See Kyles v. Whitley, 514 U.S. 419, [434]

(1995).

In any event, the defendant has failed to make

Clear what was and was not disclosed prior to

trial and has put this Court in the position of

having to parse through the record to determine

exactly what was not disclosed. That alone

would be sufficient to deny this claim without

further discussion. However, because this is a

capital case, the Court has carefully reviewed

the record before resolving this point against

Weaver.

See Respondent’s Ex. G, p. 16; Weaver, 912 S.W.2d at 514-15.

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Petitioner also argues that his conviction occurred in

violation of his due process rights because the prosecutor failed

to disclose prior to trial (1) a police emergency tape which

contained a dispatched description of the suspects involved in

the shooting along with a description of the vehicle; and (2) a

handwritten notation on an arrest record in the prosecutor’s file

stating “defendant in maroon jacket.” Petitioner asserts that the

tape, which was never produced, was significant and material

in that it contained a description of the suspect soon after the

shooting. Petitioner asserts that the handwritten notation was

material to his guilt and its matenality was increased because it

supported the testimony of witness Conrad Wragg, who

testified the shooting was done by a black male in a burgundy

track suit.

Petitioner presented this issue to the Missouri Supreme

Court, which addressed the issue as follows:

Defendant faults the prosecutor for allegedly

failing to disclose a tape of a call to an

emergency “911” number reporting that Taylor

had been shot and giving a description of the

suspect and for failing to disclose a notation on

an arrest record in the prosecutor’s file noting

“D in maroon jacket.” It is argued that the

contents of the 911 tape and the notation on the

police record “may have caused any description

contained in the 911] tape to take on greater

significance for purposes of additional

discovery.” The argument fails to disclose what

significance the 911 tapes [sic] had to the

defense. The argument also fails to disclose

what relevance the notation “D in maroon

jacket” might have had. To have any

significance, the two matters require that a

series of assumptions be made favorable to

defendant’s theory before a failure to disclose

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can be shown in any way to have been material

or exculpatory. Here, Weaver has made no

showing as to the matenality or exculpatory

nature of the tape or the notation. A defendant

is not entitled to information, on the mere

possibility that it might be helpful but must

make some “plausible showing” how the

information would have been material or

favorable. Pennsylvania v. Ritchie, 480 U.S. 39,

58 (1987). The mere possibility that these

undisclosed items might have led to future

discovery does not implicate a due process

violation. See State v. Parker, 886 S.W.2d 908,

916-17 (Mo. banc 1994).

Resp. Ex. G, p. 18; State v. Weaver, 912 S.W.2d at 517.

The Court begins its analysis with the Missoun Supreme

Court’s opinion. Because the Missouri Supreme Court reached

the merits of petitioner’s claim, its determination that

petitioner’s rights were not violated is entitled to deference. 28

U.S.C. § 2254(d). Petitioner is not entitled to relief unless he

can demonstrate that the Missouri Supreme Court’s resolution

of the issue was contrary to clearly established federal law or

involved an unreasonable application of that clearly established

federal law. 28 U.S.C. § 2254(d)(1). See Linehan, 315 F.3d at

924. The Missoun Supreme Court’s factual findings are

presumed to be correct, unless petitioner can show clear and

convincing evidence to rebut the presumption. 28 U.S.C. §

2254(e)(1); Kinder, 272 F.3d at 538.

The Missouri Supreme Court’s determination is not

contrary to clearly established federal law, nor is it

unreasonably arplied. The United States Supreme Court has

clearly delineated the standard for establishing a due process

violation based on the prosecutor’s failure to disclose evidence

material to the defense. A Brady violation occurs where (1) the

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prosecutor suppressed evidence; (2) the evidence was favorable

to the accused: and (3) the evidence was material to the issue of

guilt or punishment. Brady vy. Maryland, 373 U.S. at 87; United

States v. Walrath, 324 F.3d 966, 969 (8th Cir. 2003). To obtain

habeas relief on a Brady claim, a petitioner must show “a

reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different.” United States v. Bagley, 473 U.S. 667, 676 (1985).

A reasonable probability ofa different outcome exists where the

failure to disclose the evidence “undermines confidence in the

outcome of the trial.” Id. at 678. The cumulative effect of

suppressed evidence is considered for purposes of determining

its materiality. Kyles v. Whitley, 514 U.S. 419, 436 & n.10

(1995). “A conviction will stand where a Brady violation was

not prejudicial and amounts to harmless error.” Walrath, 324

F.3d at 969 (internal punctuation and citation omitted).

The Missouri Supreme Court properly applied the law

set forth in Brady v. Maryland and United States v. Bagley to

conclude that the undisclosed evidence here did not undermine

confidence in the verdict. As described by the Missoun

Supreme Court, the State turned over a significant amount of

material concerning Tabler, which it concluded made the

allegedly undisclosed material “pale in comparison.” A

thorough review of the record supports the Missouri Supreme

Court’s conclusion. Petitioner’s trial counsel spent a significant

amount of time focusing the jury’s attention on Tabler’s

criminal history, the relatively minor nature of the charges

Tabler was facing and the lengthy prison term he might be

sentenced to but for his testimony against petitioner, Tabler’s

ability to obtain access to petitioner’s legal papers while they

were confined together, and Tabler’s motives in testifying. In

particular, trial counsel repeatedly pointed out that Tabler was

positioned to get a five-month sentence instead of a sixteen-year

sentence, in return for his testimony against Weaver. See Tr. on

Appeal, Vol. Ill, pp. 990-92, 995-1000, 1002-03, 1014-17.

There is no reasonable probability the result would have been

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different had the additional matters been disclosed.

With respect to the 911 tape and the notation on the

arrest record, the Missouri Supreme Court found that petitioner

did not explain the significance the 91 | tape had to the defense,

and failed to disclose the relevance of the notation “D in

maroon jacket,” and thus failed to establish that the allegedly

suppressed evidence was material. A thorough review of the

record supports the Missouri Supreme Court’s conclusion.

Moreover, the police dispatcher who handled the radio calls

concerning the shooting of Taylor, Pamela O’ Donnell, testified

that she received a call about the shooting which described the

assailants as two black males in a dark blue car, one wearing

maroon clothing, and she put out a dispatch including that

description. Tr. on Appeal, Vol. IV, pp. 1584-85; 1592-93. A

defense witness named Lawrence Ducharme testified that he

saw a black man run from the woods after he heard shots, and

the man was wearing a “red, wine, maybe burgundy colored like

a jogging type suit” with long pants. Tr. on Appeal, Vol. Ill, pp.

1146-47, 1150. Conrad Wragg, the witness petitioner refers to,

testified that after he heard shots, he looked out the window and

saw a black male wearing a burgundy track suit with long pants.

Tr. on Appeal, Vol. IV, p. 1595. Wragg later went to the

Normandy Police Station and gave a written statement that he

had seen a black male wearing a plain burgundy sweatsuit, and

the statement was admitted into evidence. Id. at 1597-1601.

State witness Christine Coslick testified that she heard shots

and saw two black men near the woods, one of whom was

wearing a maroon shirt. Tr. on Appeal, Vol. II, p. 665. State

witness Wendy Holliday testified that she heard shots and saw

two black men chasing a third man, and the man directly behind

the victim was wearing “a burgundy colored top and burgundy

pants, like maroon colored pants.” Id., p. 707. There was

significant evidence presented at trial concerning the clothing

petitioner was wearing and the clothing witnesses described, to

Support petitioner’s theory of misidentification. The Court

concludes there is no reasonable probability the result would

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have been different had this evidence been disclosed, when the

effect of all the allegedly suppressed material is considered

cumulatively.

Petitioner has not established that the Missouri Supreme

Court’s decision with respect to this issue resulted in a decision

that was contrary to or involved an unreasonable application of

clearly established federal law, as determined by the Supreme

Court of the United States. See Linehan, 315 F.3d at 924.

Moreover, the Court finds the Missouri Supreme Court’s

decision did not result in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in the state court proceeding. Id. Therefore,

petitioner's § 2254 petition for habeas corpus relief should be

denied with respect to Claims Four, Five and Six.

F. Claim Seven - Admission of Hearsay

Evidence - Confrontation Clause Errors.

Petitioner asserts that the trial court improperly allowed

hearsay evidence of the victim’s state of mind to explain why

he was in possession of a gun, and the introduction of this

evidence violated the Confrontation Clause of the Sixth

Amendment. Petitioner asserts that the state of mind exception

to the hearsay rule did not apply, because he denied any

participation in the shooting and did not raise self-defense or

accident defenses, and therefore the victim’s state of mind was

completely irrelevant. Petitioner further asserts there was no

evidence he ever threatened the victim or was aware the victim

was a witness for the federal government against Larry Shurn,

his co-defendant’s brother. Petitioner asserts that at tral, the

victim’s wife, Juanita Taylor, testified that her husband feared

for his life, that Daryl Shurn intended to kill him, and that Dary!

Shurn gave her husband the “thumbs down” gesture when they

saw each other in court. A St. Louis Police Department

detective, Jerry Leyshock, testified the “word on the street” was

that the Shurns intended to kill Taylor.

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Petitioner presented this issue to the Missouri Supreme

Court, which addressed the issue as follows:

In his second point, Weaver claims the trial

court erred in admitting hearsay evidence.

During cross-examination of police officer

Cantwell, defense counsel elicited that the

police found a briefcase belonging to Taylor

near his body and that it contained a cocked and

loaded .32 caliber handgun. It appears the

defense was attempting to use the handgun

evidence to create an inference that the victim

was a violent person involved in the drug trade.

In response to this evidence, the prosecutor

called Taylor’s wife and another police office,

who collectively testified that Taylor had told

them that he was carrying a gun because the

word on the street was that Daryl Shum

intended to kill Taylor and that Shum gave

Taylor the “thumbs down” gesture when they

saw one another in the city courts building.

In order for evidence to be admissible, it must

be relevant, logically tending to prove a fact in

issue or corroborate relevant evidence that bears

on the principal issue. State v. Mercer, 618

S.W.2d 1, 9 (Mo. banc 1981), cert. denied 454

U.S. 933 (1981). Weaver argues that because he

was not attempting to prove self-defense, and

because the briefcase and its contents were not

relevant to the defense that he had been

misidentified while jogging, evidence of

Taylor’s motivation for carrying the loaded

handgun should not have been admitted. While

Weaver is correct that the primary thrust of the

defense was misidentification, the defendant

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injected the issue that the victim was carrying a

loaded weapon. That tactic was designed to

permit the jury to infer that the victim was

violent and posed a threat to defendant. Thus, it

was defense counsel's tactic to inject into the

case the victim’s state of mind.

Under the doctrine of curative admissibility,

“where the defendant has injected an issue into

the case, the state may be allowed to admit

otherwise inadmissible evidence in order to

explain or counteract a negative inference raised

by the issue defendant injects.” State v. Lingar,

726 S.W.2d 728, 734-35 (Mo. banc 1987), cert.

denied 484 U.S. 872 (1987). Under this

doctrine, the defendant must first have

introduced evidence, even though it might be

technically inadmissible evidence. See State v.

Shurn, 866 S.W.2d 447, 458 (Mo. banc 1993),

cert. denied 513 U.S. 837 (1994). The victim’s

statement of fear of the defendant as a reason for

carrying the gun was relevant and not unduly

prejudicial under the state of mind exception to

the hearsay rule. J/d.; State v. Boliek, 706

S.W.2d 847, 850 (Mo. banc 1986), cert. denied

479 U.S. 903 (1986).

Respondent’s. Ex. G, pp. 12-13; State v. Weaver, 912 S.W.2d

at 510.

The Missouri Supreme Court addressed petitioner’s

claim only with respect to whether the trial court properly

admitted the statements under the state-of-mind exception to the

hearsay rule and the doctrine of curative admissibility under

Missouri law. The state supreme court did not discuss

petitioner’s claim that admission of such statements violated the

Confrontation Clause. The state court’s opinion therefore rests

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on adequate and independent state law grounds. It is well

established that federal] habeas courts are barred from reviewing

claims decided on adequate and independent state law grounds.

See Coleman, 501 U.S. at 729-30.

Because the Missouri Supreme Court relied on adequate

and independent state law grounds in resolving this issue, this

Court’s consideration of the claim is barred unless petitioner

Satisfies either the “cause and prejudice” or “fundamental

miscarriage of justice” exceptions to procedural bar. Coleman,

501 U.S. at 750. Petitioner has made no showing of cause and

prejudice, nor has he made any demonstration of a fundamental

miscarriage of justice occurring from failure to consider his

claims. Schlup v. Delo, 513 U.S. 298, 314-15 (1995).

Therefore, dismissal of this claim is appropriate.

In view of the gravity of this proceeding, however, the

Court will review the merits of petitioner’s Confrontation

Clause claim. Petitioner argues that introduction of Taylor’s

statements violated the Confrontation Clause because the state-

of-mind exception is not applicable in this case. Petitioner

further argues that introduction of Taylor’s statements

prejudiced him because it conveyed the impression petitioner

acted as a “hit man” to kill Taylor to prevent him from

testifying against the Shurns.

A review of the record shows that over relevancy

objections by the State, petitioner’s trial counsel elicited on

cross-examination of police officer Cantwell that Taylor’s

briefcase had been found at the scene, and contained a loaded,

cocked gun. Petitioner referred to and admitted into evidence

a photograph of the gun. Tr. on Appeal, Vol. Ill, pp. 935-38.

The statements at issue were admitted in response to this

evidence. Juanita Taylor, the victim’s wife, testified that Taylor

told her he was carrying a gun “because the word was out on the

street that Smokey [a nickname for Daryl Shurn] was going to

kill him.” Id., p. 1098. Juanita Taylor also testified that Taylor

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told her he had seen Larry Shurn while at the city courts, and

Larry Shurn gave him a “thumbs down” gesture. Id. Detective

Leyshock testified that Taylor told him the “word on the street”

was that the Shurns were going to kill him, and as a result,

Taylor was going to carry a gun. Id.. pp.1 108-09.

Petitioner’s trial counsel objected to these statements as

hearsay, irrelevant and prejudicial. Id., pp. 1030-32. The tal

court overruled counsel’s objections and stated it would admit

the testimony for the limited purpose of showing the victim’s

state of mind. Id., p. 1031-32. In each instance, immediately

prior to the witnesses’ testimony concerning Taylor’s

Statements, the trial court cautioned the jury that the testimony

they were about to hear was “not being admitted to show the

truth of the information testified to but is only being admitted

for the purpose of showing the state of mind” of the victim. Id.,

pp. 1098, 1108.

Federal habeas review ts limited to determining whether

a conviction violated the Constitution, laws or treaties of the

United States. Esicile v. McGuire, 502 U.S. 62, 68 (1991).

State law governs the admissibility of evidence in a state

criminal proceeding. Clark v. Groose. 16 F.3d 960, 963 (8th

Cir.), cert. denied, 513 U.S. 834 (1994). To the extent

petitioner bases his claim on state law evidentiary rulings, his

claim is not cognizable in a habeas proceeding. Estelle, 502

U.S. at 68.

Petitioner also argues that admission of the alleged

hearsay statements violated his rights under the Confrontation

Clause. A federal court may grant habeas relief where a state

court’s evidentiary ruling “infringes upon a_ specific

constitutional protection or is so prejudicial that it amounts to

a denial of due process.” Clark, 16 F.3d at 963 (citation

omitted). To establish such a violation, petitioner's burden 1s

“much greater than that required on direct appeal and even

greater than the showing of plain error.” Mendoza v. Leapley,

A-9]

5 F.3d 341, 342 (8th Cir. 1993).

The Confrontation Clause guarantees a criminal

defendant “the right to physically face those who testify against

him, and the nght to conduct cross-examination.” Pennsylvania

v. Ritchie, 480 U.S. 39, 51 (1987) (citing Delaware v. Fensterer,

474 U.S. 15, 18-19(1985)). Petitioner alleges a violation of his

right to cross-examine the victim. “[TJhe right to confrontation

is a trial right, designed to prevent improper restrictions on the

types of question that defense counsel may ask during cross-

examination.” Ritchie, 480 U.S. at 52 (citing California v.

Green, 399 U.S. 149 (1970)). Usually the right is satisfied “if

defense counsel receives wide latitude at trial to question

witnesses.” Id. (citing Fensterer, 474 U.S. at 20). The absence

of testing of a witness’ testimony “calls into question the

ultimate integrity of the fact-finding process.” Ohio v. Roberts,

448 U.S. 56, 63-64 (1980).

Under certain circumstances, an out-of-court statement

is sufficiently reliable to dispense with the usual nght to

confrontation. In Roberts, the Supreme Court clarified that an

out-of-court statement is admissible “only if it bears adequate

‘indicia of reliability.’ Reliability can be inferred without more

in a case where the evidence falls within a firmly rooted hearsay

exception. In other cases, the evidence must be excluded, at

least absent a showing of particularized guarantees of

trustworthiness.” Roberts, 448 U.S. at 66. The rationale behind

the rule is that “[a]dmission under a firmly rooted hearsay

exception satisfies the constitutional requirement of reliability

because of the weight accorded long-standing judicial and

legislative experience in assessing the trustworthiness of certain

types of out-of-court statements.” Idaho v. Wnght, 497 U.S.

805, 817 (1990).

The statements that Taylor made to his wife and to

Detective Leyshock constitute hearsay. The Missouri Supreme

Court addressed this issue, finding that while the primary thrust

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of the defense was misidentification, petitioner injected the

issue that the victim was carrying a loaded weapon. The state

court concluded the evidence was a defense tactic was designed

to permit the jury to infer that the victim was violent and posed

a threat to the defendant, and thus, was intended to inject into

the case the victim’s state of mind. The state court then

discussed the doctrine of curative admissibility which provides

that “where the defendant has injected an issue into the case, the

state may be allowed to admit otherwise inadmissible evidence

in order to explain or counteract a negative inference raised by

the issue defendant injects.” State v. Lingar, 726 $.W.2d 728,

734-35 (Mo. banc 1987), cert. denied, 484 U.S. 872 (1987).

The state court concluded, “The victim’s statement of fear of

the defendant as a reason for carrying the gun was relevant and

not unduly prejudicial under the state of mind exception to the

hearsay rule.”” Respondent’s Ex. G, p. 13; State v. Weaver, 912

S.W.2d at 510.

The doctrine of curative admissibility and the state of

mind exception to the hearsay rule are analytically distinct. See

State v. Armontrout, 8 $.W.3d 99, 111 (Mo. banc 1999), cert.

denied, 529 U.S. 1120 (2000). The Missouri Supreme Court’s

discussion, however, appears to conflate these two issues. The

doctrine of curative admissibility applies only where the

defendant has initially introduced inadmissible evidence.

Goffstein v. State Farm Fire & Cas. Co., 764 F.2d 522, 524 (8th

Cir. 1985); State v. Middleton, 998 S.W.2d 520, 528 (Mo. banc

1999), cert. denied, 528 U.S. 1167 (2000). “In that situation,

the opposing party may introduce otherwise inadmissible

evidence of its own to rebut or explain inferences raised by the

first party’s evidence.” Middleton, 998 S.W.2d at 528 (internal

citation omitted). “A party may not. . . introduce inadmissible

evidence to rebut inferences raised by the introduction of

admissible evidence during cross-examination.” Jd. (citations

omitted). “Absent an exception [to the hearsay rule}, hearsay

tes

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