Opposition Brief — Missouri v. Gill

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FILED

IN THE SUPREME COURT OF THE UNITED STATES | JUW 22 2090

| OUPIGE OF THE CLERK

NO. 09-1327 nasenneen

STATE OF MISSOURL

Petitioner

CAPITAL CASE

MARK GILI

Respondent

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

WILLIAM J. SWIFI

OFFICE OF THE STATE PUBLIC DEFENDER

ATTORNEY FOR RESPONDENT

WOODRAIL CENTRI

1000 W. NIFONG

BUILDING 7, SUILE 100

COLUMBIA, MISSOURI 65203

(573) 882-9855

FAX: (573) 882-9468

WILLIAM.SWIFT(@MSPD.MO.GO\

TABLE OF CONTENTS

PTABLE OF CONTENTS

PTABLE OF AUTHORITIES

RESPONDENT'S STATEMENT OF THE CASI

Relevant Facts of the Offense

Che State’s Tnal Evidence and Arguments

iT] lhe Postconviction Case

REASONS THE WRIT SHOULD BE DENIED

Rebuttal to Victum Impact ls Presumptively Admissible Under This

Court's And The Missoun Supreme Court's Decisions

Gill's Case is Controlled By this Court's Rompilla Decision

Because Counsel Committed A Similar Omission

tt] [here ls No Caselaw Conflict On The Presumptive Admissibility

Of Rebuttal To Victim impact Evidence

1\ Lack of Junsdictior

A. Necessity 10 Choose Between [he Missoun Supreme Court s

And Attomey General's Factual Findings

4. Hypothetical Facts - Petitioner Lacks Standing

CONCLUSION

CERTIFICATE OF SERVIC!

rABLE OF AUTHORITIES

CASES:

Booth v. Maryland, 482 U.S. 496 (1987)

Clay v. State, 954 $.W.2d 344 (Mo. App., E.D. 1997)

Commonwealth v. Phinney, 843 N.E.2d 1024 (Ma. 2006)

Couch v. Booker, 650 F.Supp.2d 683 (E.D. Mich. 2009)

Cummings v. Sirmons, 506 F.3d 1211 (10° Cir. 2007)

Daimler Chrysler Corp. v. Cuno, 547 U.S. 332 (2006)

DeSchon v. State, 197 P.3d 476 (Mont. 2008)

Espinal v Bennett, 588 F.Supp.2d 388 (E.D.N.Y. 2008)

Garay v. State, 53 P.3d 626 (Alaska Ct. App. 2002)

Gennetten v. State, 96 S.\W.3d 143 (Mo. App., W.D. 2003)

Gill v. State, 300 §.W.3d 225 (Mo. bane 2009)

Hayward v. State, 24 So.3d 17 (Fla. 2009)

Hernandez v. New York, 500 U.S. 352 (1991)

In re Cordero, /56 P.2d 13/70 (Ca. banc 1933)

Mililam v. State, 745 N.W.2d 719 (la. 2008)

Payne v. fennessee, SOL U.S. 808 (1991)

Pillette v. Berghuis, 630 F.Supp.2d 791 (b.D. Mich. 2009)

Ruines v. Byrd, 521 U.S. 811 (1997)

Page

Passim

21-22, 31

29

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14

Windom y Sate, 656 SO0.2d 432 (la 1995)

Rompilla v. Beard, 545 U.S. 374 (2005) 22-26

Simmons v. South Carolina, 512 U.S. 154 (1994)....... passim

Sayder v. Louisiana, 552 U.S. 472 (2008)... 33

State v. Brown, 246 S.W.3d 519 (Mo. App., S.D. 2008) J

State v. Gardner, & S.\W.3d 66 (Mo. banc 1999) 1¥-20, 24, 31

State v. Gentry, 888 P.2d 1105 (Wash. banc 1995).............. . Eee

State v. Gill, 167 S.W.3d 184 (Mo. banc 2005) ... poe ... passim

State v. Hall, 982 §.W.2d 675 (Mo banc 1998)...... sausthioatiies Pees 18

State v. Taylor, 929 S.W.2d 209 (Mo. banc 1996) PEED Wee: |

State v. Wise, 879 S.\W.2d 494 (Mo. oanc 1994)..... ~ ; RE

Strickland v. Washington, 466 U.S. 668 (1984). ONE 16, 21

Sumner v. Mata, 449 U.S. 539 (1981). SIG

Taylor v. State, 262 S.\W.3d 231 (Mo. banc 2008)........ 30-3]

Thomason v. Jamrog, 2008 W.L. 2761042 (E.D. Mich. July 15, 2008) ................30

Washington v. Smith, 219 F.3d 620 (7" Cir. 2000)... Kaleaaticme

Wipeins v. Smith, 539 US. 510 (2003) | 25

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RESPONDENT’S STATEMENT OF THE CASE

fsecause the state has failed to include a number of relevant and probative

facts which facts establish that tal counsel’s failure to review police report

discovery provided to them by the state was unreasonable and prejudicial and has

distor + what the Missouri Supreme Court actually decided, respondent presents

its own statement of relevant facts

I. Relevant Facts of the Offense

Mark Guill and his co-defendant Justin Brown were convicted in separate

trials of the first degree murder of Ralph Lape. State v. Gill, 167 S.W.3d 184 (Mo.

banc 2005) and State v. Brown, 246 S.W.3d 519 (Mo. App., $.D. 2008). The state

sought death against both, but only obtained death against Gill. Lape had lived

alone before Gill began living with Lape (T.Tr.636). Gill and Brown abducted

Lape. Lach claimed that the other shot Lape. State v. Gill, 167 $.W.3d at 188;

Brown, 246 S.W.3d at 530. After Lape’s death, they used Lape’s ATM card to

make purchases (T.1r.731-36). They used Lape’s computer to transfer money

from one of Lape’s bank accounts to another so that the money could be accessed

using Lape’s ATM card (T.Tr.729-36,828). When the New Mexico Highway

Patrol stopped the car Gill was nding in and arrested Gill, he had with him Lape’s

AM card and Lape’s computer hard dnve(1.11.822,876-89,96 1-65)

11. The State’s Trial Evidence and Arguments

In Cape Girardeau County Prosecuting Attorney Swingle’s guilt phase

opening statement, he told the jury that victim Ralph Lape had been “a [GJood

{SJamaritan” who had afforded Mr. Gill the opportunity to live on his property

because Gill “was down and out and needed a place to stay” (1 Tr.587).’ Dunng

initia! guilt closing argument, Swingle argued that Lape “had given this mana

place to stay, a roof to have over his head,” and that resulted in his death

(T.Tr.1084)

In penalty phase Lape’s sister, Diane Miller, testified that without

Swingle’s request, she had prepared a photo album that she brought him because

she “wanted |Swingle] to see the person” he represented (T.Tr.1171). There were

many pictures of Lape with his daughter, Megan. Those pictures included and

highlighted: (1) at the hospital with Megan the day she was born (T.Tr.1173); (2)

Megan’s first day of school when Lape had gotten her ready (T.Tr.1174); and (3)

two pictures from Megan’s high school graduation (T.Tr.1183). Lape’s daughter

Megan testified that someday she would get married “and | won’t have my dad to

walk me down to the aisle and tell me how proud he is of me” (T.Tr.1225)

' At tral, the state was represented by local county prosecutor Swingle. At all

other relevant times since, the state has been represented by the Missoun Attomey

General’s Office

BR

Diane testified that Lape went to St. Ambrose Catholic School (T.Tr.1170)

Lape was not the type of person who “gossip{ed]” about people (1. Tr.1 184)

Diane read a prepared statement (T.Tr.1185). That written statement

included Lape was the eldest, “the example for all the rest,” and shouldered that

responsibility “never complaining” while highlighting Lape’s generosity

(T.Tr.1186,1190). Diane read: “the proudest and happiest day of Ralph's life was

the day his daughter Megan was born” (T.Tr.1 187). Lape behaved like “Mr.

Mom” (T.Tr.1187). Diane’s husband, Mitch Miller, testified that he had studied

with Lape the “valuable good life lessons” of the old west culture and characters

(T.Tr.1195)

Lape’s brother Steven Lape read a prepared statement (1. 1r.1218). Steven

described how Ralph Lape’s school teachers had held him in high regard

(1.Tr.1220). Steven testified that after Lape’s death he learned “how generous”

Lape had been having paid for a friend’s wife’s funeral (T.Tr.1221). Steven

concluded his tesumony invoking a quote from Lincoln’s Gettysburg address as

epitomizing Lape’s characier (T.Tr.1221-22). The Lincoln quote was: “The

world will little note, or long remember what we say here. But they will never

forget what we did here” (T.Tr.1221-22)

III. The Postconviction Case

Gill was represented at trial by two attorneys from the Missoun Public

Defender’s Capital Case Defense Office, David Kenyon and Sharon Turlington

3

“a

Both Kenyon and Turlington had substantial capital case experience (29.15Tr.112-

15, 273-75)

Police Officer David James was listed in discovery that was provided as the

“officer in charge” of the investigation (29.15Tr.148). James prepared the

probable cause to charge statement which recited that the car Gill was arrested in

“had Lape’s computer in the car” (29.15Ex.69). Swingle filed an information that

listed James as a state’s witness (29.1 5Ex.67-68;29.15Tr.126-28). Throughout the

police report discovery that was provided to counsel, James’ name was repeated

(29.15Tr.129-53). It was Officer James who obtained consent to search Lape’s

computer from Lape’s sister Diane (29.15Tr.142-43). In Prosecutor Swingle’s

Answer to Request For Discovery, he listed Lape’s computer as something he

might introduce (T.L.F.91;29.15Ex.95 at 20-21)

Counsel never interviewed and never deposed Officer James (29.15 11.123-

24,295-96;29.15Ex.69). During a pretrial deposition Kenyon took of a witness

who owned lakehouse property with Lape, Kenyon explained to that witness he

“like[s] to take depositions of anybody that has any kind of familiarity with the

case at all....” (29.15L.F.403 transcript at p.4) (emphasis added)

Officer James prepared an Encase report of an analysis he did of Lape’s

computer and that report was disclosed to Gill’s counsel (29.151 r.176-

77;29.15Ex.15 at 5125). Page | of the Encase report stated that the Encase

information “was acquired by Lt. David James” (29.15Ex.15 at 5125)

4

Counsel for respondent apologizes for having to present in detai! the

disgusting, shocking content of the sexual maternal Lape put on his computer.

Counsel does not believe, however, that this Court can fully appreciate how the

state misrepresented Lape’s character to the jury without doing so. Moreover,

counsel does not believe this Court can truly appreciate the impact this evidence

would have had on the outcome of the penalty phase without being informed of

the details of the child pornography, Lape’s chats about his daughter’s anatomy

and his attraction for it, and other sexually explicit material.

File names, as they appeared, in Officer James’ Encase report included:

| +-= Archive

a Le

| | +~@ |

| a_sluttyi6girl_w3éc |

| +-&% blachstamina69

+-@ cherle_012

| +- daddoesme15

| +-8 elena_ita_giri

| +-@ jbnrbi‘€ |

| 4=—jenny_cappa

+-B keflleanni980 7

| += kelly1_15_ 1909

| +-@ Wnicholte14

| +-B lobowoilf1960

|

|

(29.15Ex.15 at 5128). James knew from reviewing Lape’s computer and

preparing his Encase report that there was much pomography, including child

pomography, on Lape’s computer (29.15Ex.93 at 22-24)

Kenyon reviewed the Encase report before trial and did not notice anything

that alerted him there was pornography on Lape’s computer (29.15Tr.167-69)

6

Since trial Kenyon has reviewed the Encase report more closely and there were

entries whe ¢ names should have alerted him to the possibility of pornography on

| ape’s computer (29.151 r.167-69;29. 1SEx.15 at 5128). Turlington testified

similarly (29.15 Tr.303)

At Gill’s postconviction hearing, computer expert Chatten, who uncovered

| ape’s computer's sexual content for the co-defendant’s counsel, testified about

what he found on Lape’s computer. Lape’s computer contained the Yahoo profile

“dogday afternoon2002” (29. 15Tr.613). That profile displays a standing

white male with his erect penis exposed from the navel downward (29.151 r.613

14:29. 15hx.92). The “real name” appears as “Ralph” (29.151 1.614). Listed as

“hobbies” were the following: “boating, fishing, camping, socializing with

frends, drinking beer oa my boat, and ... Oh, and sex, all kinds, except I don’t do

men. So guys don’t ask.” (29.15 1r.614)

Lape’s computer also contained a profile “prisonem2001° (29.15 [r.617)

lhus profile contains a facial picture with the name “Ralph? (29.15Tr.617). That

profile states as “hobbies:” “fishing, boating, camping sex. No males, just

females, one or more OKay’(29.15Tr.618). Favorite quote is “want to

(29.15 Tr.618)

lhere were several relevant chats by Lape as “dogday attemoon2002

t ,

Ihe entire chat “lobowoltl960" done by Lape was as follows

ee

”

dogday afternoon2002 (11:44 °45): yes, but my daughter lives with her mom

day_afternoon2002 (11:44:51); how about you

[rbnow (11:44:54): how old is she?

nknown (11:45:00): i have a 17 year old daughter

dogday_afternoon2002 (11:45.08), mine is 17 too

nknown (11:45:21): she pretty hot?

nknown (11:45:44): 7

dogday afternoon2002 (11:45:83): you bat, really stacked

oOgday afternoon2002 (11:45:56): yours

nknown (11:46:19): same here...5'7"...140. blonde nair....long legs...blue eyes ..that tight teen girl ass...38¢

[row (11:46:22): yours?

dogday_ afternoon2002 (11:47:31): dirty blonde, blue eyes, 59° | dont know her weight but she has terntfic tits

nknown (11:47:49): MMMMMmmmmmmmmmm...my daughter is cory.....your daughters name?

day_afternoon2002 (11:47:57): megan

nknown (11:48:12): megan have a nice ass??

dogday afternoon2002 (11:48:31): yes realy ight and firm and round

nknown (11:48:43): how often you get to see ner?

day_afternoon2002 (11:48:57): bout lonce a week

unknown (11:49:15): does she ever wear short shorts ..shorts skurts when she is around you??

nknown (11:49:27): cory does al of the time......drives me nuts...

foasy_stemoonzon (11:50:03): ming too, and those Inte half tops, her tits are so big, they wont hardly stay in

Ainknown (11:50:24): mmmmmmmmmmmmmmmmmmmm...she kike to give you nice views of her tits??

dogday_aftornoon2002 (11:51:01): yeh, she teases me alot, how about cory

nknown (11:51:49): oooohhhhhhhhhyes....sh eloves showing off her ass. she Is a swimmer and her ass ls Soo0000000 smooth

fr firm. ...and those tts......man....s0 firm and big.....gets me hard just thinking of them

known (11:52:01): you ever jo thinkg about megan??

unknown (11:52:36): maybe'??

ogday_afternoon2002 (11:52:49): all the fucking time

ogday_afternoon2002 (11:52:57): you ever messed with cory

unknown (11:53:20): she has let me jo on her lits_..and ass Cheeks .. we just started. .... you and megan do anything?

nknown (11:53:52): you there?

ogday_afternoon2002 (11:54:13): mmmmmmmmmmmmnmmmmnammmmm

ogday_afternoon2002 (11:54:26): corry, like you suckin on her tits

unknown (11:54:38): yessssssss$.......you and megan do much??

ogday_afternoon2002 (11:55.05): just touchy feely things, but | sure want more

nknown (11:55:29): are you hard right now??

idogday afternoon2002 (11:55:61): working on @, LOL

dogday_afternooin2002 (11:56:02): does cory live with you

Linknown (11:56:15): yes

unknown (11:56:29): ever gat 4 nice close view of megans ass???

floaday afterneoen2002 (11:56:58): yeh, she lays on the floor and wat hes, TV nice shot of her ass then

unknown (11:57:17). what doess he wear doing that????

unknown (11:57:36): Cory does the same thing . that is how | started jo on her ass cheeks

dogday_afternoon2002 (11:57:38): usually shorts

dogday_afternoon2002 (11:57:46): sometimes her panties

unknown (11:57:55): you get hard looking at that????

dogday_afternoon2002 (11:58:11): hell, yes, wouldnt you

| unknown (11:58:32); yesssssssssssss...does she know that???

dogday_afternoon2002 (11:58:54): well, | dont know, | try to be pretty careful

dogday_afternoon2002 (11:59:01): you ever seen cory in her panties

dogday_afternoon2002 (12:00:54): is cory home now

| Sogday afternoon2002 (12:01:50) ok then

(29. 1SEXx.11 at 3855-56)

Lape’s entire chat of “daddoesme15” was as follows

8

dogday afternoon2002 (18:31:51): hi baby gin

dogday afternoon2002 (18:31:59): you like dads cock

(29. 1Skx. 11 at 3850)

I Upe s chat about his pnor in lvement with 13 and LS year old girls in

“sweetpiecel 23° included

Flogday afternoon2002 (18:34:10): you ever been with older guy for real

unknown (18:34:15): yep

dogday_afternoon2002 (18:34:31): cool

nknown (18:34:42): u ever ben with a younger girl for real?

ogday_afternoon2002 (18:34:52): yes

\dogday_afternoon2002 (18:34:57): a couple of them

w/nknown (18:34:58): kewl

franowe (18:35:04): how old?

ogday_afternoon2002 (18:35:22): 13 and 15

lunknown (18:35:34): kew) ur girls?

ogday_afternoon2002 (18:35:55): no a neighbor gin and her friend

tame (18:36:06): hot

unknown (18:36:19): u still do them?

Pogday_afternoon2002 (18:36:27): you bet, they have the sweetest little pussies

(29. TSEx.11 at 3857)

Additionally, duning “sweetpiece 123,” Lape had the following exchange

unknown (18:47:58): (need a hard cock

dogday_afternoon2002 (18:48:02): did you see my pic on profil

(29 1Sbtx 11 at 3858)

L ape's computer contained child pornography of young girls with penise

in their vaginas and penises in their mouths, along with child pomography of

young girls exposing their breasts and genitalia (29.15Tr.622-28). The file names

of such child pomography included; (1) “cumshower jpg”; (2) “1 0ondad jpg” and

(3)

“fuck hardcore Asian sex suck fucking gum animals gay lesbian dog cat fis

h chicken horse good music blur oasis swayed (1.jpg)” (29.15 Tr.623,625-26)

Lape’s hard dnve contained twenty-nine movies whose file names depicted

bestiality (29.15 Tr.628-29). Those names included: “pretty teen girl gets anal sex

from dog,” “animal sex horse rape,” “bestiality dog cums on woman's face,” and

“animalpornmovie — bestiality — prettyteengirlgetsanal. mpg” (29. 1STr.629-30)

From his pretrial computer investigation, Officer James concluded Lape

authored the sex chats and not someone else sitting at Lape’s computer

(29. 15Ex.93 at 26). James had known Lape before his death, and concluded from

his review of Lape’s computer that Lape was “a pervert” (29. 15Ex.93 at 38-39)

James testified there was nothing in Lape’s computer to link Gull to placing

child pornography on it (29. 15Ex.93 at 48). James determined that the

pomography was placed on Lape’s computer before Gill began living with Lape,

and therefore, Gill could not have placed it there (29.15Ex.93 at 48). James

testified that the sexual images on Lape's computer were last accessed before Gill

lived with Lape (29.15 T'r.646-47). If James would have found any evidence to

connect Gill or co-defendant Brown to placing illegal pomography on Lape's

computer, then he would have alerted the prosecutor (29. 1SEx.93 at 48-49)

10

James’ Encase report was disclosed to co-defendant Brown's counsel

(29.15Ex.93 at 20-21). Lape’s hard drive's contents were not put on a dise unt

Krown’'s counse! requested them (29. 15Ex.93 at 32-38 45-46)

Swingle testified that he hled a motion in Brown's cas

Lape s computer's sexual content as urelevant (29.1SEx.95 at 44-47). Swingle

testified that the tral court in Brown ruled that the defense could not present

as ‘a Saint

lL ape's Computer's contents unless the victim impact cast Lapx

(29. 15SEx.95 at 46-47)

Swingle testified that in Brown, no evidence was presel ted that opened ine

door to the computer evidence (29.15E.x.95 at 46-47). Swingle alerted the victin

impact witnesses not to cast Lape as “a saint” or the sexual content evidence

t

would be admissible (29. 15Fx.95 at 48-52.68)

Kenyon thought the state painted Lape in penalty as “a saint” (29.i511

Kenyon believed that the child pomography, video bestiality, and on-line

'4)

chats would have “cast | Lape] in a much different light than what the State was

trying to paint in the penalty phase” (29.15 Tr.171)

| urlington testified | ape s sexual chats could have been used to rebut the

State's portrayal of Lape as a person of great character and would have rebutted

the state's portrayal of Lape as an exemplary father (29.15 Tr.3

» vr

‘

lurlington testified that the child pornography evidence and evidence

1S year old girls would have

Suggested Lape was sexually involved with 13 to

|

rebutted the state's portrayal of Lape as a person of great character and upstanding

citizen (29, 15Tr.307-08). Turlington would have wanted to selectively present the

assorted sexual content (29.15 Tr.318.354)

The postconviction court signed the Attorney General's f

(29.15 1r.666;29.15L.F.510-43). The Attomey General's findings asserted that the

|

sexual Content On Lape 's computer could be attributed to Gill and that there was

no evidence establishing Lape was responsible for Lape's computer's sexua

,

contents (29. 15L.F.514,521-22,5826,532-33,535-37). See Opposinon to Cer

Appendix at A438, AS5-A56, A600, A66-A6/, A69-A71. The Attorney General's

re signed even though James, the state s computer expert and officer

ad concluded Lape authored the sexual chats, James’ overall! review of

Lape 's Lumputer had caused him to conclude Lape was “a pervert,” an

determined the pornography on Lape's computer was put o1

before Gill lived with Lape (29. 15Ex%.93 at 26,38-39,48

t roughout its peuuuuon, the

those of the postconviction court ili has filed his ow!

challenging the fundemental faumess of him being Ge

the pastconvichion judge signed the Attorney General s

Own police officer computer witness testified victim Lap

In the state’s Missoun Supreme Court brief, it argued that Gull’s claim, that

the postconviction proceedings were fundamentally unfair because the

postconviction judge signed the state's findings should not be reviewed because

the Attomey General's Proposed Findings were not part of the appellate record

(Resp. Br. 48). In response, Gill filed a motion with the Missoun Supreme Court

requesting that it accept as part of the record on appeal 4a copy of the Atlorney

General's Proposed Findings that was served on counsel who represented Gill in

the tral level postconviction court. See Opposition to Cert. Appendix at A/8

A86. Attached to that motion was a copy of the Attorney General's findings that

was served on Gill’s tral level postconviction counsel. See Opposition to Cert

Appendix at A89-A123. That motion set forth that the reason the appellate record

did not contain a document latx ed as “Proposed Findings” was the Attomey

General! had submitted a document denominated as “I indiags” with lines left

blank for the postconviction judge to insert the date aiong with the judge's

signature, which was exactly what that judge did. See Opposition to Cert

‘

Appendix at AS1-82. That motion set forth that undersigned counse! had

compared side Dy the side the Attorney General's Proposed rind ws wilh Uc

findings the postconviction judge had signed which showed that the

' ' ie " } _

inappropnate sexual conten

11094

postconviction judge had signed verbatim the state’s findings, as submitted by the

Attorney General. See Opposition to Cert. Appendix at A81-82.

In response to Gill’s motion, the Missouri Supreme Court entered an order

designating the Attorney General’s Proposed Findings that were served on trial

level postconviction counsel as Exhibit 98. See Opposition to Cert. Appendix at

A126. That order stated that Gill’s motion was “sustained subject to the Court’s

future determination as to the appropriateness of considering the same.” See

Opposition to Cert. Appendix at A126.

On direct appeal, Gill had argued that the victim impact evidence presented

exceeded the bounds that this Court had authorized in Payne v. Tennessee, 501

U.S. 808 (1991). State v. Gill, 167 S.W.3d 184, 195-97 (Mo. banc). The Missouri

Supreme Court rejected that claim and noted that “the Millers’ discussion of their

family's moral values was permissible in that it explained the values held by Mr.

Lape.” State v. Gill, 167 S.W.3d at 196.

“he Missoun Supreme Court found that counsels’ performance was

deficient because they saw the file names on the disclosed Encase report

Suggesting sexual content, but took no action to investigate what they saw. Gill v.

State, 300 S.W.3d 225, 233 (Mo. banc 2009). The computer was relevant because

it was used to transfer money from Lape’s accounts so the money could be

accessed with his ATM card. /d. at 228 n.2. The Court also found that in light of

Officer James’ role in preparing the probable cause statement and authoring the

14

Encase report and his endorsement as a witness, reasonably competent counsel

would have interviewed or deposed James. /d. at 233. Interviewing or deposing

James would have led to discovery of the sexually explicit material because James

knew what was on Lape’s computer. /d. at 233.

Gill was prejudiced because Lape’s computer’s contents either could have

been used to rebut the state’s good character evidence or could have been used to

dissuade the state from presenting the good character evidence. Gill v. Staie, 300

S.W.3d at 234. Prejudiced was also established because co-defendant Brown's

counsel had access to the same information as Gill’s counsel, but Brown’s counsel

uncovered the computer’s sexual content and used that knowledge to prevent the

state from presenting good character evidence about Lape and Brown was

sentenced to life. Jd. at 230-31, 234.

In finding counsel was ineffective, the Missouri Supreme Court necessarily

did not defer to the Attomey General’s findings that the postconviction judge

signed that Gill, rather than Lape, was responsible for Lape’s computer’s sexual

content, otherwise, it could not have found that counsel was ineffective for failing

to uncover Lape’s computer’s sexual content.

REASONS THE WRIT SHOULD BE DENIED

I. Rebuttal to Victim Impact Is Presumptively Admissible Under

This Court’s And The Missouri Sapreme

Court’s Decisions

15

The state’s petition is nothing more than a request for error correction,

when no error occurred. In fact, the Missouri Supreme was true to what this Court

has held as to a defendant’s right to rebut victim impact with relevant rebuttal

evidence.

The Missouri Supreme Court simply applied this Court’s decision in

Strickland v. Washington, 466 U.S. 668 (1984) to a truly unique fact situation.

The Missouri Supreme Court established no general rules for investigating “bad

victim” evidence or even the presentation of “bad victim” evidence. The Missouri

Supreme Court only decided that counsels’ failure to review discovery the state

provided to them which established that the victim was, in the words of the state’s

police officer computer expert a sexual “pervert” in a case where the victim was

portrayed as a “saint” was unreasonable and the failure to discover that evidence

was prejudicial. In light of the content of the evidence and the co-defendant not

being sentenced to death, a trial in which counsel did review the discovery and

used it to limit victim impact evidence, neither determination was in the least bit

remarkable, much less cert-worthy.

Petitioner argues that the evidence Lape had inappropriate sexual content

on his computer was presumptively inadmissible because Gill was not allowed “to

smear the vicim’s character” during penalty phase in order to “suggest the victim

deserved to die.” (Petition at 10, 15). Petitioner further argues that what the

Missouri Supreme Court required of counsel will now result in victims being

16

“harangued by zealous investigators.” (Petition at 17). None of what petitioner

asserts is true.

Evidence that rebuts the state’s victim impact evidence is presumptively

admissible under the decisions of this Court. In Booth v. Maryland, 482 U.S. 496,

501-02 (1987), this Court held that the Eighth Amendment prohibited the

admission of victim impact evidence. In Payne v. Tennessee, 501 U.S. 808, 811,

825 (1991), this Court overruled Booth to the extent that Booth created a per se

Eighth Amendment prohibition against victim impact. The Booth dissenting

Justices, who favored allowing victim impact evidence, stated that “[n]o doubt a

capital defendant must be allowed to introduce relevant evidence in rebuttal to

a victim impact statement, but Maryland has in no wise limited the right of

defendants in this regard.” Booth, 482 U.S. at 518 (emphasis added) (opinion of

White, J. joined by Rehnquist, C.J.,O’Connor, J. and Scalia, J.). See also

Simmons v. South Carolina, 512 U.S. 154, 164 (1994) (post Payne decision

holding where state relies on particular evidence to ask for death “elemental due

process principles operate to require admission of the defendant's relevant

evidence in rebuttal”) (emphasis added). Payne adopted the Booth dissenting

Justices’ views as the Court’s new majority view. Payne, 501 U.S. at 851

(Marshall, J. dissenting). The Booth dissenters did note that counsel’s decision

whether to rebut victim impact evidence or not is not an easy one. Booth, 482

U.S. at 518 (White, J. dissenting).

The Missouri Supreme Court’s opinion noted that generally neither the

state nor the defense is allowed to introduce character evidence about the victim.

Gill v. State, 300 $.W.3d at 232 (citing State v. Hall, 982 S.W.2d 675, 681 (Mo

banc 1998)). In Hall, unlike here, the state had not injected in the first instance the

victims’ character. Hall, 982S.W.2d at 681. What the Missouri Supreme Court

has held in decisions like Hall was that a defendant cannot initiate injecting

evidence of the victim’s bad character. In Gill’s case, in contrast, the state,

through its victim impact witnesses, injected in the first instance that Lape was a

person of sterling morals, exceptional integrity, and an extraordinary father worthy

of being described as a “Mr. Mom.”

What the Missouri Supreme Court recognized in Gill was that through

injecting Lape’s character in the victim impact evidence, the state had “open{ed]

the door for the defense to present rebuttal character evidence.” Gill v. State, 300

S.W.3d at 233. The Missouri Supreme Court has consistently recognized that any

competent evidence that explains, counteracts, repels, or disproves evidence of

one party can be offered as proper rebuttal by the other party. State v. Gardner, 8

S.W.3d 66, 72 (Mo. banc 1999). Lape’s computer’s sexual content counteracted,

repelled, and disproved that Lape was a person of high morals and exceptional

integrity. The computer’s content counteracted, repelled, and disproved Lape

possessed the character and integrity of the “Good Samaritan,” a “saint,” “Mr.

Mom,” and a Lincolnesque character. A person who possessed such qualities

18

would not have child pornography on his computer, would not have boasted on-

line to having engaged in sex with minors, would not have solicited on-line sex

with minors, created a profile posting his erect penis, and created profiles that

listed as his “hobbies” sex of all kinds. “Mr. Mom” would not engage in on-line

sexual chats about his sexual attraction for his daughter’s anatomy. All this

evidence rebutted petitioner’s portrayal of Lape as a person of sterling character

and it was presumptively admissible evidence as rebuttal evidence. See State v.

Gardner, Booth, Payne, and Simmons v. South Carolina. Moreover, Lape’s

computer’s contents was proper rebuttal because the Missouri Supreme Court

tuled on direct appeal that the state’s victim impact was proper because “the

Millers’ discussion of their family’s moral values was permissible in that it

explained the values held by Mr. Lape.” State v. Gill, 167 S.W.3d at 196.

The Missouri Supreme Court has recognized that it is improper for the state

to focus in penalty on the “relative worth” of a victim. State v. Wise, 879 S.W.2d

494, 516 (Mo. banc 1994) (rejecting claim of improper prosecutorial argument

because it did not get into the victim’s “relative worth”). An inherent problem that

has been recognized with victim impact evidence is that it creates two classes of

victims, those whose lives are “so worthwhile” such that their killing is more

aggravated so as to cast the defendant as “more deserving” of death, and those

whose lives were “not as worthwhile” such that their killing is less aggravated

making the defendant “less deserving” of death. See Hayward v. State, 24 So.3d

19

17, 41-43 (Fla. 2009) (prosecutor’s argument comparing the character and

personal choices of victim to the defendant’s character and personal choices was

improper); State v. Gentry, 888 P.2d 1105, 1166-67 (Wash. banc 1995) (Johnson,

J. dissenting) (victim impact evidence creates situation where punishment decision

is influenced by whether the defendant “killed a “worthy” member of society or a

less “worthy” citizen”); Windom v. State, 656 So.2d 432, 440-41 (Fla. 1995)

(Kogan, J concurring and dissenting) (courts should not encourage the use of

victim-impact evidence to “invite jurors to gauge the relative worth of particular

victims’ lives.”). When the state injected here evidence that Lape was a person of

sterling character, outstanding personal morals, and a “Mr. Mom” in character, it

sought to create for the jury the dichotomy that Lape was a person whose life was

so highly valued in our society’s values system that Gill’s offense was that much

more aggravated and Gill was that much more deserving of death. The Missouri

Supreme Court properly recognized that had counsel not been ineffective they

were entitled to rebut the state’s evidence that this offense was more aggravated

because Lape was a salt of the earth person of impeccable character. See State v.

Gardner, Booth, Payne, and Simmons v. South Carolina. The Missouri Supreme

Court did not sanction any notion that the kind of evidence that could have been

admitted was proper to establish Lape “deserved to die.” (See Petition at 15).

In deciding Gill’s counsel was ineffective, the Missouri Supreme Court

began its analysis by setting forth this Court’s standards for evaluating

20

effectiveness under Strickland v. Washington, 466 U.S. 668 (1984). See Gill v

State, 300 §.W.3d at 232. In particular, Gill was required to establish counsel’s

performance was deficient. Gill v. State, 300 $.W.3d at 232. The Missouri

Supreme Court a that “[c]ounsel's performance is deficient if it falls below an

objective standard of reasonableness, as measured by prevailing professional

norms.” Jd. at 232. The second prong of Strickland required that Gill was

prejudiced. Jd. at 232. The Missouri Supreme Court noted that under Strickland

prejudice exists if there is a reasonable probability that but for counsel’s deficient

performance the jury would have recommended life rather than death. /d. at 232.

The Missouri Supreme Court found that Gill’s counsels’ performance was

deficient because they had deposited in their lap Officer James’ Encase computer

report which contained file names on their face which should have alerted them to

inappropnate sexual content. Gill v. State, 300 S.W.3d at 233. Furthermore,

counsels’ performance was deficient because they took no action to interview or

depose Officer James, the officer in charge of the investigation of Lape’s death,

despite Missouri cases which had imposed a duty on counsel to interview or

depose investigating officers. See Clay v. State, 954 §.W.2d 344, 347-49 (Mo.

App., E.D. 1997) (counsel ineffective for failing to interview or depose

investigating police officers noting: “[a] prudent lawyer defending a first degree

murder charge would be expected to interview the investigating officers”);

Gennetten v. State, 96 S.W.3d 143, 152 (Mo. App., W.D. 2003) (counsel was

21

ineffective for failing to investigate a witness and quoting Clay for counsel’s duty

to interview police officers who investigated the defendant). Counsels’ failure to

interview or depose Officer James stands in stark contrast to the statement Kenyon

made to an occurrence witness in Gill’s case while deposing a witness who owned

lakehouse property with Lape that he “like[s] to take depositions of anybody that

has any kind of familiarity with the case at all....” (29.15L.F.403 transcript at

p.4) (emphasis added).

The Missouri Supreme Court had the authority to decide the admissibility

of evidence of Lape’s character and it decided that evidence was admissible. See

Booth, Payne, and Simmons y. South Carolina. Further, the Missouri Supreme

Court found that if counsel had done what the co-defendant’s counsel had done to

uncover Lape’s computer’s contents, they could have used it to dissuade the state

from misrepresenting Lape as a person of stellar character and morals or if the

state had insisted on misrepresenting Lape’s character, then counsel was enutled to

rebut that misrepresentation with Lape’s computer’s contents. Gill v. State, 300

§.W.3d at 234.

II. Gill’s Case is Controlled By this Court’s Rompilla Decision

Because Counsel Committed A Similar Omission

The Gill decision involves nothing more than a straightforward application

of Rompilla v. Beard, 545 U.S. 374 (2005). In Rompilla v. Beard, 545 U.S. 374,

383 (2005), this Court found counsel’s performance in that death penalty case was

22

deficient when counsel failed to examine a court file that contained Rompilla’s

prior conviction. Counsel’s performance was deficient because they were on

notice that the government intended to utilize as aggravating evidence Rompilla’s

violent offense history. /d. at 383-84. That prior conviction file contained

evidence that would have responded to and rebutted the government’s

aggravation. /d. at 385-86. This Court noted that counsel’s performance was

deficient because of the ease with which counsel could have examined the court

file. /d. at 386 n.4. This Court further noted that counsel’s obligation to rebut the

aggravating evidence went beyond just having objected to the government being

allowed to admit the evidence on grounds that it was prejudicial. /d. at 386 n.5.

Here counsel had James’ Encase report and ignored the obvious — file

names that would have put any reasonably competent attorney on notice that

Lape’s computer contained inappropriate sexual content. As experienced capital

counsel, they knew that the state would present victim impact evidence yet they

took no action to follow-up the Encase report for evidence that could reasonably

be anticipated to rebut that victim impact. Cf Rompilla.

Petitioner complains that counsel could not be ineffective because Gill’s

counsel objected to its victim impact evidence (Petition at 11). As this Court

recognized in Rompilla, counsel’s obligation goes beyond merely objecting to the

state’s evidence and includes uncovering evidence that rebuts aggravating

evidence. Rompilla, 545 U.S. at 386.

23

Petitioner also complains that counsel could not be ineffective because Gill

did not tell counsel about Lape’s computer’s sexual content (Petition at 3). This

Court in Rompilla rejected the notion that counsel could forgo examining the court

file and instead rely on the defendant or the defendani’s family for determining

whether there was anything helpful in the court file. Rompilla, 545 U.S. at 388.

The same was true here, counsel had an obligation to carefully review Officer

James’ Encase report and to then interview or depose James.

Counsel had a duty in Rompilla to review the court file from the prior

conviction because the prosecution had indicated that it had intended to rely on its

contents. Rompilla, 545 U.S. at 389-90. Similarly, Gill’s counsel had a duty to

review the Encase report with an eye towards whether it would contain rebuttal to

victim impact evidence because as experienced capital counsel they had to know

the state would be presenting victim impact evidence. See State v. Gardner,

Booth, Payne, and Simmons v. South Carolina.

The Missouri Supreme Court in evaluating Gill’s counsels’ performance

found it particularly compelling that Gill’s co-defendant’s counsel, who had

access to the same reports from Officer James, uncovered Lape’s computer’s

sexual content. Gill v. State, 300 S.W.3d at 230-31. The co-defendant’s counsels’

actions of uncovering Lape’s computer’s sexual content is a perfect measure of

Gill’s counsels’ unreasonableness because counsel for both defendants were

similarly situated in having Officer James’ reports.

24

Rompilla was prejudiced because had counsel looked at the prior

conviction court file they would have found a range of mitigation leads that were

not furnished through other sources. Rompilla, 545 U.S. at 390. Once counsel

had the obligation to examine the court file, they could not ignore “red flags” that

would have led to favorable matters, /d. at 391 n.8. In Gill's case, the “red flags”

the Missouri Supreme Court recognized were file names in James’ Encase report

such as “a_sluttyl8girl w38c,” “daddoesmel15,” “lilnichole14,” “sweet_

tasting slute,” “sweetgirl4older,” “sweetpiece|123.” Gill v. State, 300 $.W.3d at

228.

Justice O'Connor, in her Rompilla concurrence, noted that counsel’s failure

to review the court file was the result of inattention and not a reasoned strategic

judgment. Rompilla, 545 U.S. at 395-96 (O’Connor, J. concurring and relying on

Wiggins v. Smith, 539 U.S. 510, 534 (2003)). Counsel’s deficient performance

here is even more egregious than what Justice O’Connor recognized was the case

in Rompilla. Gill’s counsel had Officer James’ report with its sexually suggestive

file names, but did nothing to follow-up on that information through either

interviewing or deposing James. Gill v. State, 300 S.W.3d at 233.

The mitigation case in Rompilla that could have been built through

examining the court file and following-up on the “red flags” established Rompilla

was prejudiced. Rompilla, 545 U.S. at 391-93. Here, Prosecutor Swingle testified

that he did not present any victim impact evidence in the co-defendant’s trial that

25

would have opened the door to Lape’s computer’s sexua! contents (29.1 5Ex.95 at

46-47). The reason Swingle did not was that the co-defendant’s counsel, unlike

Gill’s counsel, had uncovered Lape’s computer’s sexual contents and the trial

court had ruled that if Swingle cast Lape as “a saint,” then Lape’s computer's

sexual content was admissible (29.15Ex.95 at 46-52, 68). The Missouri Supreme

Court properly reasoned that Gill was prejudiced because the co-defendant getting

life when the prosecutor refrained from injecting evidence Lape was a person of

impeccable character established a reasonable probability of a different result.

Gill v. State, 300 §.W.3d at 230-31, 234. The Missouri Supreme Court further

found that Brown’s life sentence could not be attributed to different factual

scenarios because both Brewn and Gill alleged the other shot Lape. Gill v. State,

300 S.W.3d at 231 n.4.

In a like manner to Rompilla, the Missouri Supreme Court found that Gill

was prejudiced through counsels’ failure to do the obvious. Gill was prejudiced

because Lape’s computer’s contents either could have been used to rebut the

state’s good character evidence or could have been used to dissuade the state from

presenting the good character evidence. /d. at 234. Prejudiced was also

established because co-defendant Brown’s counsel had access to the same

information as Gill’s counsel, but Brown's counsel uncovered the computer's

sexual content and used that knowledge to prevent the state from presenting good

26

character evidence about Lape and Brown was sentenced to life. /d. at 230-31,

234.

The petitioner, as it did in the Missouri Supreme Court, seeks to mislead

this Court by presenting only an out of context snippet of Kenyon’s testimony that

he is vigilant about not wanting to be perceived as “kicking a corpse.” (Petition at

15). Petitioner does this in order to obfuscate the truth to claim counsel exercised

reasonable strategy (Petition at 15). The Missouri Supreme Court declined to

sanction such attempt and this Court should too. Kenyon’s “kicking a corpse

testimony” in context was as follows:

Q. And when did you have — so you reviewed this in a month. Had you

known about this at the time of trial, how would you have used it?

A. We would have alerted -- it’s difficult to know exactly how it would

have been used in trial, because we are in a precarious position as defense

attorneys in this case because there's an expression which seems like a

callous expression, but it's very true and we use it in our trade, which is you

don't kick a corpse. In penalty phase, you don't try and slam a victim by

showing bad things that the victim may have done. That generally doesn't

go over well with juries.’

’ Petitioner only quotes Kenyon to this point and fails to reproduce the balance of

Kenyon’s testimony that immediately followed. See Petition Appendix at A-19.

27

Q. = All right.

A. So you have to be very careful about introducing anything that in

any way demeans or disrespects the memory of the person who was the

deceased. But on the other hand, having that information in your hand, you

can utilize it as a bargaining chip, if nothing more, with the prosecuting

attorney's office letting them know that should you attempt to try and paint

a picture of the victim as being an angel, it is important that the jury does

get the whole picture. And so it would probably have been something -- I

don't suspect it would have been something that I would have made any

effort to try and introduce in the defendant's case in chief in the penalty

phase. But it certainly would have been something that I would have

strongly considered using in rebuttal or even for cross examination

purposes of State's witnesses to the extent that they would adduce evidence

that the victim was a saint.

Q. Do you think that Mr. Lape was painted as a saint in your case?

A. Yes.

Q. So from what you're saying is if you had this information and he was

painted as a saint, would you have used it?

A. Yo.

(29.15Tr.172-73). Thus, Kenyon indicated without reservation that had he known

of Lape’s computer’s sexual contents that he would have used it to rebut

28

respondent’s evidence or to prevent respondent from misrepresenting Lape as a

person of exceptional integrity. Turlington, likewise, testified Lape’s computer’s

sexual content could have been used to rebut the state’s portrayal of Lape as an

exemplary father and person of the highest moral character (29.15Tr. 307-08).

The Missouri Supreme Court’s finding of deficient performance in the

handling of Officer James’ computer police report and failure to interview or

depose Officer James is consistent with what other courts have ruled when counsel

who had police reports failed to take reasonable actions based on the contents of

those reports. When counsel obtains a police report, counsel is required to utilize

the information contained in that report in order to conduct reasonable

investigation intended to further the client’s defense and the failure to do so

constitutes deficient performance. See, e.g., Pillette v. Berghuis, 630 F.Supp.2d

791, 801 (E.D. Mich. 2009) (failure to utilize police report to corroborate

defendant's testimony was deficient performance and prejudicial); In re Cordero,

756 P.2d 1370, 1382-83, 1386 (Ca. banc 1988) (failure to investigate evidence of

defendant’s PCP use recounted in police report was deficient performance and

prejudicial as to intoxication defense); Commonwealth v. Phinney, 843 N.E.2d

1024, 1028-31, 1033 (Ma. 2006) (failure to utilize police reports that identified

someone else as homicide suspect deficient performance and prejudicial); Espinal

v Bennett, 588 F.Supp.2d 388, 399-408 (E.D.N.Y. 2008) (failure to investigate

information in redacted police report that would have corroborated defendant’s

29

alibi defense was deficient performance and prejudicial); Garay v. State, 53 P.3d

626, 626-29 (Alaska Ct. App. 2002) (counsel’s failure to conscientiously review

police report and take appropnate action required vacating guilty plea);

Washington v. Smith, 219 F.3d 620, 625-26, 629, 634 (7" Cir. 2000) (counsel who

failed to decipher handwriting in police report regarding matters that would have

led to critical evidence supporting alibi defense and lack of defendant’s connection

to weapons used constituted deficient performance that was prejudicial).

Moreover, the Missouri Supreme Court’s Gill decision is consistent with

other courts’ decisions finding counsel was ineffective for failing to investigate

rebuttal evidence. It is generally recognized that counsel’s failure to prepare

evidence to rebut evidence that reasonable counsel ought to have anticipated

constitutes ineffective assistance of counsel. See, e.g., Couch v. Booker, 650

F Supp.2d 683, 692-95 (E.D. Mich. 2009) (counsel was ineffective for failing to

investigate and obtain a pathologist who could have rebutted state’s pathologist

that cause of death was accident, rather than homicide and required new trial);

Thomason v. Jamrog, 2008 W.L. 2761042 *9-*10 (E.D. Mich. July 15, 2008)

(counsel’s performance deficient for failing to obtain expert to rebut state’s expert

on memory repression theory, but defendant not prejudiced); Millam v. State, 745

N.W.2d 719, 721-24 (Ia. 2008) (counsel’s performance deficient for failing to

offer evidence in sexual abuse trial to rebut alleged victim’s testimony that she had

made prior false accusations of sexual abuse and new trial required). Cf. Taylor v.

30

State, 262 S.W.3d 231, 237-48 (Mo. banc 2008) (defendant was prejudiced by

absence of evidence that could have been used to contradict state’s witness).

Under this Court’s decisions in Booth, Payne, and Simmons v. South

Carolina, evidence that rebuts victim impact evidence is presumptively

admissible. Under Missouri law, Lape’s computer’s sexual content was

presumptively admissible rebuttal evidence because it counteracted, repelled, and

disproved Lape was a person of exemplary moral character and a father worthy of

being referred to as “Mr. Mom.” See Gardner, supra. Thus, counsel was

obligated to investigate the obvious that appeared in James’ computer analysis.

In Gill, petitioner presented victim impact evidence that the victim was a

person of sterling character of the highest moral fabric and a father of exemplary

character. Counsel knew the state would be presenting victim impact and had

Officer James’ report which listed file names that would have alerted reasonable

counsel to the sexual content on Lape’s computer. Despite that knowledge and

possession of Officer James’ computer report, counsel did not follow Missoun law

and interview and depose the police officer who had investigated the case. See

Clay and Gennetten. Moreover, that Gill’s counsels’ performance was deficient is

established because the co-defendant’s counsel, who had access to James’ reports,

uncovered Lape’s computer’s contents and used that information to prevent the

state from misrepresenting Lape’s character to the jury. Prejudice to Gill was

31

demonstrated because when the state was prevented from misrepresenting Lape’s

character to the jury, the co-defendant obtained a life sentence.

III. There Is No Caselaw Conflict On The Presumptive Admissibility

Of Rebuttal To Victim Impact Evidence

Petitioner asserts that there now is a conflict between jurisdictions as to

whether counsel can be deemed ineffective for failing to discover inadmissible

evidence. This Court has made clear through its decisions that rebuttal to victim

impact evidence is presumptively admissible. See Booth, Payne, and Simmons v.

South Carolina. Thus, there is no conflict to support granting the state’s petition.

The cases petitioner cites have no application to the issue of the

effectiveness of counsel for failing to rebut victim impact wideaoe. In DeSchon v.

State, 197 P.3d 476, 481-82 (Mont. 2008), counsel was not ineffective for failing

to introduce inadmissible evidence of victim bad character in the defense case in

chief. In Cummings v. Sirmons, 506 F.3d 1211, 1232-33 (10" Cir. 2007) counsel

was found not to have been ineffective for failing to impeach and cross-examine a

state’s witness with his prior convictions and mental health history. Neither of

these cases involve counsel having failed to rebut victim impact evidence, and

thus, there simply is no conflict in the law for this Court to address.

IV. LACK OF JURISDICTION

A. Necessity To Choose Between The Missouri Sup reme Court’s

And Attorney General’s Factual Findings

32

This Court defers to factual findings of state courts, even when the findings

relate to a constitutional issue. Hernandez v. New York, 500 U.S. 352, 366 (1991).

See also, Snyder v. Louisiana, 552 U.S. 472, 486 (2008) (Thomas, J. and Scalia, J.

dissenting and citing Hernandez for this principle). The motivating principle

behind deference to state court findings is considerations of federalism. Sumner v.

Mata, 449 U.S. 539, 547 (1981).

In a similar vein, the Missouri Supreme Court normally defers to

postconviction tral court factual findings. State v. Taylor, 929 S.W.2d 209, 224

(Mo. banc 1996). In order for the Missouri Supreme Court to have concluded

counsel was ineffective for failing to uncover Lape had put offensive sexual

content on his computer, however, it had to reject the Attorney General’s factual

findings, that the postconviction judge signed as the findings of a court, that Gill

put the offensive content on Lape’s computer, rather than Lape put it on his own

computer. If this Court were to grant certiorari, then it would be placed in the

untenable position of having to choose whether to defer to the Attorney General’s

factual finding the postconviction trial court signed that Gill was responsible for

Lape’s computer’s sexual content or the Missouri Supreme Court’s factual

finding, based on Officer James’ testimony, that Lape was responsible for the

sexual content on his own computer. Prudential federalism considerations require

this Court deny certiorari because it is not the role of this Court to decide whether

33

to apply the Attorney’s General’s rendition of “the facts” that the postconviction

judge signed or the facts the Missouri Supreme Court properly found.

B. Hypothetical Facts — Petitioner Lacks Standing

This Court has recognized that “‘[n]o principle is more fundamental to the

judiciary’s proper role in our system of government than the constitutional

399

limitation of federal-court jurisdiction to actual cases or controversies.”” Daimler

Chrysler Corp. v. Cuno, 547 U.S. 332, 341-42 (2006) (quoting Raines v. Byrd, 521

U.S. 811, 818 (1997)). The Article III standing requirement enforces the

Constitution’s case or controversy requirement. Daimler, 547 U.S. at 342. In

Daimler, this Court concluded that the plaintiffs lacked standing because the

alleged injury was “conjectural or hypothetical” because it depended on how

legislators responded to a reduction in revenue. Daimler, 547 U.S. at 344.

Petitioner has argued that this Court should grant certiorari because the

Missouri Supreme Court’s decision mandates that capital defense counsel

investigate victims’ backgrounds such that a victims’ families will “be harangued

by zealous investigators” to uncover unfavorable material about the victims such

that the Gill opinion “requires capital-defense counsel to drag murder victims

through the mud” (Petition at 16-17). According to petitioner, the Gill opinion

will lead to investigators interrogating the murder victims’ frends and relatives

about the victim’s character flaws (Petition at 18).

The Missouri Supreme Court’s opinion only imposed on counsel the duty

to carefully examine police reports that were provided to counsel in discovery and

to interview or depose police officers who investigated the defendant. The facts of

this case do not involve investigators pursuing survivors to acquire bad character

evidence about a victim. The horrors that petitioner posits warrant this Court’s

review are just as conjectural and hypothetical as the injury alleged in Daimler,

and therefore, petitioner lacks standing here.

CONCLUSION

This Court should deny certiorari because rebuttal evidence to victim

impact evidence is presumptively admissible and constitutionally required to be

allowed under this Court’s decisions. Gill’s counsel were obligated to investigate

the police computer expert, Officer James, who knew the victim’s computer

contained sexual content that would have rebutted petitioner’s misrepresentation

of the victim as a person of the highest moral character and personal integrity.

Reasonable counsel who had Officer James’ report would have uncovered Lape’s

computer’s sexual content because of the file names that appeared in that report.

There is no conflict between jurisdictions as to the admissibility of evidence that

rebuts victim impact evidence and the effectiveness of counsel in failing to present

such rebuttal.

Further, this Court should deny certiorari because it lacks jurisdiction.

Respectfully submitted,

William J. Swift, MlOBar #37769

Assistant Public Defender

Attomey for Respondent

Woodrail Centre

1000 W. Nifong

Building 7, Suite 100

Columbia, Missouri 65203

(573) 882-9855

FAX: (573) 882-9468

william.swift@mspd.mo.gov

CERTIFICATE OF SERVICE

wd -

I hereby certify that on this ad day of JY WE , 2010, two

true and correct copies of the foregoing were mailed postage pre-paid to the Office

of the Attorney General, P.O. Box 899 Jefferson City, Missouri 65102.

William J. eal . j

36