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Tomas Grant ERVIN

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robberies
Number of victims: 3
Date of murders: 1967 / 1988
Date of arrest: January 1989
Date of birth: January 21, 1951
Victims profile: Male taxicab driver / Mildred Hodges, 75, and her son, Richard, 49
Method of murder: Stabbing with knife / Suffocation with plastic bags
Location: Cole County, Missouri, USA
Status: Executed by lethal injection in Missouri on March 28, 2001
 
 
 
 
 

United States Court of Appeals
For the Eighth Circuit

 

opinion 97-1435

 
 
 
 
 
 

Summary:

With accomplice Bert Hunter, forced their way into a home at gunpoint, thinking the owner kept large amounts of cash.

They bound Richard and his mother with duct tape, robbed them, then suffocated both with plastic bags over their heads upon leaving.

Hunter, who was also convicted, sentenced to death, and executed in 2000, testified at trial against Ervin. Both were previously convicted of murder and met while in prison.

Citations:

State v. Ervin, 835 SW2d 905 (Mo. 1992).
Ervin v. Delo, 194 F3d 908 (8th Cir. 1999).

ClarkProsecutor.org

 
 

State of Missouri v. Tomas G. Ervin

835 S.W.2d 905 (Mo.banc 1992)

Capital Punishment in Missouri from Missouri.net

Case facts:

On the afternoon of December 15, 1988, Thomas Ervin and an accomplice, Bert L. Hunter, went to the home of Richard Hodges in Jefferson City because they believed Hodges kept large amounts of cash in a file cabinet in his home.

With a pistol in his pocket, Hunter knocked on the Hodges' door and Mr. Hodges' mother, Mildred Hodges answered. Hunter pulled a stocking mask down over his face and displayed a pistol.

He entered the house and grabbed Mrs. Hodges by the hand. Mrs. Hodges became excited and cried out for her son. Mr. Hodges came into the room where they were standing and requested that the two assailants leave his mother alone because she was in frail health.

As Mr. Hodges attempted to calm his mother, Hunter told Mr. Hodges to bind her hands and feet with duct tape. Mrs. Hodges who had been taken to a bedroom was left sitting on a bed. Ervin took Mr. Hodges to the living room and made him lie on the floor.

Ervin and Hunter began taping Mr. Hodges' hands. Hunter then searched the house for money and other valuables. Meanwhile, Hunter heard a noise from the bedroom and found Mrs. Hodges standing in front of her dresser. Hunter bound her with duct tape and left her lying in the hallway floor near the bedroom.

Hunter returned to the living room where Ervin was taping Mr. Hodges hands, feet and mouth. When Mr. Hodges complained that he could not breath, Ervin responded, "That's the general idea."

Plastic bags were placed over the heads of both victims. Hunter admitted that after the plastic bags were placed on the victims' heads, he held Mr. Hodges' nose to suffocate him. Ervin reined and told Hunter that he thought Mrs. Hodges was dead. Hunter checked Mrs. Hodges and determined that she had no pulse.

The two then finished looking through the house and left. They removed Mr. Hodges' body and disposed of it in Jefferson City. The police found the body and then went to the Hodges' home where they found Mrs. Hodges' body.

Following the crime the two men separated and traveled between Florida and Jefferson City, at one point staying in Paducah, Kentucky one night where they left the Hodges' car. About a month later Ervin was arrested for the murders. Hunter later confessed to the crimes and implicated Ervin.

Legal Chronology

1988
12/15 -Tomas Ervin and Bert Hunter rob and kill Mildred and Richard Hodges at their home in Jefferson City, Missouri.

1989
3/28 -Ervin is charged by indictment with two counts of first degree murder and one count of first degree robbery.
5/26 -On a motion of a change of venue the case is transferred from Cole to Callaway County.

1990
1/17 -Ervin's trial begins in Callaway County.
1/19 -The jury finds Ervin guilty of two counts of murder first degree and robbery first degree. The jury assesses punishment at death for the two murders.
3/5 -Ervin is sentenced to death on each count of murder and to a consecutive term of life for the robbery conviction.
3/12 -Ervin files a notice of appeal.
7/11 -Ervin files a motion for post conviction relief in the Callaway County Circuit Court.

1991
4/29 -The Circuit Court denies post conviction relief.

1992
7/21 -The Missouri Supreme Curt confirms Ervin's convictions and sentences and the denial of post conviction relief.

1993
2/22 -The U.S. Supreme court denies certiorari review.
3/12 -Ervin files a petition for writ of habeas corpus in the U.S. District Court for the Western District of Missouri

1996
10/30 -The U. S. District Court denies the petition for writ of habeas corpus.

1999
10/18 -The U. S. Eighth Court of Appeals affirms the denial of relief.

2000
6/26 -The U. S. Supreme Court declines certiorari review.
9/20 -The State requests an execution date from the Missouri Supreme Court.

2001
2/27 -The Missouri Supreme Court sets March 28, 2001 as Ervin's execution date.

 
 

Thomas Ervin executed

Associated Press

March 28, 2001

MISSOURI - Tomas Ervin was executed early Wednesday for his role in the 1988 murders of an elderly Jefferson City woman and her son.

Ervin, 50, died at 12:04 a.m. Wednesday at the Potosi Correctional Center, 3 minutes after the first of three lethal drugs was administered. He looked up from his bed at the state witnesses before coughing several times before falling back on to the pillow.

His last statement, according to corrections officials: "When the courts of this nation refuse to afford a condemned prisoner the opportunity to prove that he is actually innocent of the crimes for which he stands condemned, the capital punishment system is broken," Ervin said. "The courts refused me that opportunity and so tonight, as it has done at least twice in the past, the state of Missouri executes an innocent man." Ervin did not elaborate. He was convicted in 1990 for the murders of Mildred Hodges, 75, and her son, Richard, 49.

Ervin's fate was sealed when Gov. Bob Holden decided not to grant clemency less than 3 hours before Ervin's scheduled execution.

The U.S. Supreme Court also refused to halt the execution. In an interview Tuesday, Ervin had said he believed there was still a chance the courts would grant a stay. "The courts for the 1st time are actually taking a look at my innocence claim," he said. The execution came 9 months to the day after the state executed Bert Hunter for the same killings. Hunter confessed to the 1988 murders and testified at trial that Ervin was his partner in the crimes.

Hunter said he and Ervin robbed the Hodges home on Dec. 15, 1988, under the impression Richard Hodges kept a large amount of cash at the house. Hunter said the mother and son were killed because the assailants feared they had been recognized. Both victims were found with plastic bags over their heads.

But Ervin maintained his innocence, insisting he was at home asleep when Hunter and another person committed the crimes. "Hunter was staying at my house," Ervin said in an interview Tuesday with The Associated Press. "I had taken him to the doctor. I assumed he was sick in his bed with strep throat at the time. "He left with someone else. I was none the wiser."

Both men were convicted of murder once before, in Ervin's case the 1967 slaying of a cab driver in Buchanan County.

Ervin and Hunter met in prison, taught themselves computer programming and, once paroled, started working full time for the state Department of Revenue in the early 1980s. Both ended up losing their jobs, said Cole County prosecutor Richard Callahan. He said both abused cocaine and started traveling across the south, committing robberies along the way, before they returned to Jefferson City.

Hunter wanted to rob banks, but Ervin convinced him house robberies were a safer bet, Callahan said. "His ultimate motivation for testifying against Tommy was that he blamed Tommy for their predicament," Callahan said. "He was just unhappy that he had agreed to the house robberies."

It's the reliance on Hunter's testimony that formed the core of Ervin's final appeals. In them, Ervin argues his trial counsel was "constitutionally inadequate," making mistakes that included a failure to play for the jury -- as promised -- a tape of Hunter's guilty plea.

In that plea, Hunter tells a judge Ervin was not involved in the murders. "When you look at all of the things that Hunter has said on different occasions, you see just a wide variety of explanations of events," John Osgood, Ervin's current attorney, said. "If you attempt to corroborate those, you find it's replete with lies. "It makes his testimony very suspect."

Hunter also said Ervin was not involved during a polygraph test administered by the state. The results of that test, inadmissible in Missouri courts, and Hunter's subsequent statements about the test, which are admissible, were not presented to the jury. "It is reasonable to assume that the outcome of the trial would have been different if Hunter's provocative videotaped and post-polygraph testimony had been presented to the jury," wrote Judge Gerald W. Heaney, of the 8th Circuit, in a dissent to the court's Tuesday order denying Ervin a stay.

Heaney concluded that Ervin's deserved a new trial. Callahan dismissed the issue, saying he feels the jury would have found Ervin guilty even if Hunter had not testified. Hunter's testimony "was an import and key development, but there was enough circumstantial evidence to tie Ervin to the murders," Callahan said.

Ervin becomes the 2nd condemned inmate to be put to death this year in Missouri and the 48th overall since the state resumed capital punishment in 1989. Missouri trails only Texas (244), Virginia (82), and Florida (51) in the number of executions carried out since the death penalty was re-legalized on July 2, 1976.

Ervin becomes the 22nd condemned inmate to be put to death this year in the USA and the 705th overall since America resumed executions on January 17, 1977.

 
 

ProDeathPenalty.com

Tomas Ervin was executed early Wednesday for his role in the 1988 murders of an elderly Jefferson City woman and her son. He was convicted in 1990 for the murders of Mildred Hodges, 75, and her son, Richard, 49.

The execution came 9 months to the day after the state executed Bert Hunter for the same killings. Hunter confessed to the 1988 murders and testified at trial that Ervin was his partner in the crimes.

On the afternoon of December 15, 1988, Hunter and Ervin carried out a plan to rob Richard Hodges at his home on Boonville Road in Jefferson City. Hunter and Ervin believed Hodges kept large amounts of cash in a file cabinet in his home.

With a pistol in his pocket, Hunter knocked on the Hodgesí door. Richardís mother, Mildred Hodges, answered. Hunter then pulled a stocking mask down over his face and, entering the house, grabbed Mrs. Hodges by the hand. He held a gun in the other hand.

Mrs. Hodges became very excited and cried out for her son, Richard. Richard came into the room where they were standing, telling the two assailants to leave Mrs. Hodges alone because she had just returned home after heart surgery.

As Richard attempted to calm his mother, Ervin and Hunter began binding her hands and feet with duct tape. She was made to lie down on a bed in a back bedroom. Ervin took Richard to the living room and made him lie on the floor. Ervin began taping Richardís hands.

At same time, Hunter was searching the house for money and other valuables. Meanwhile, Mrs. Hodges managed to get free and ran into the living room where Ervin was still taping Richardís hands. S

he pulled the mask off Ervin, causing him to fall back on the floor. Ervin called out Hunterís first name. Hunter returned to the living room and saw what had occurred.

Once the mask was pulled off Ervin and Hunterís name was called out, Hunter and Ervin made a mutual decision that both the Hodges were to be killed. Mrs. Hodges attempted to flee. Hunter and Ervin caught Mrs. Hodges in the hallway, forcing her to the floor.

According to Hunter, she hit the wall, bloodying her nose. A rush of air came out of her and she became still. The two then returned to finish taping Richardís mouth and nose. Plastic bags were placed over the heads of both victims.

Hunter admitted that after the plastic bags were placed on the victimsí heads, he held Richardís nose to suffocate him. While Hunter was dealing with Richard, Ervin was "working with Mrs. Hodges," although Hunter surmised there was "nothing to do, anyway."

Ervin returned and told Hunter that he thought Mrs. Hodges was dead. Hunter checked Mrs. Hodges and determined that she had no pulse.

The two then finished looking through the house and left. They returned to the house at least once that evening or the next evening.

Both men were convicted of murder once before, in Ervin's case the 1967 slaying of a cab driver in Buchanan County. Ervin and Hunter met in prison, taught themselves computer programming and, once paroled, started working full time for the state Department of Revenue in the early 1980s.

Both ended up losing their jobs, said Cole County prosecutor Richard Callahan. He said both abused cocaine and started traveling across the south, committing robberies along the way, before they returned to Jefferson City.

Hunter wanted to rob banks, but Ervin convinced him house robberies were a safer bet, Callahan said. "His ultimate motivation for testifying against Tommy was that he blamed Tommy for their predicament," Callahan said. "He was just unhappy that he had agreed to the house robberies."

 
 

Ervin executed

By Bob Watson - Jefferson City News-Tribune

Wednesday, March 28, 2001

POTOSI -- Proclaiming his innocence to the end, Tomas Ervin was executed this morning at the Potosi Correctional Center for his role in the December 1988 murders of Jefferson City residents Mildred and Richard Hodges.

Tim Kniest, spokesman for the state Corrections Department, told reporters Ervin's last words before his execution were: "When the courts of this nation refuse to afford a condemned prisoner the opportunity to prove that he's actually innocent of the crimes for which he stands condemned, the capital punishment system is broken. "The courts refused me that opportunity and so tonight, as it has done at least twice in the past, the state of Missouri executes an innocent man." Kniest said Ervin, 50, didn't name the other death row inmates he thought had been wrongly executed.

Gov. Bob Holden, who at 12:01 a.m. gave the order to proceed with Missouri's second execution this year, didn't agree that Ervin's sentence was improper. "I have examined the history of the judicial proceedings and the request for a stay that have been placed before me. I find nothing to justify setting aside the result of the judicial proceedings," Holden said in a statement read to reporters by Dora Schriro, the state's Corrections director. "The state, on behalf of its citizens, has the right to impose the death penalty for the crime of capital murder. Our courts and the Department (of Corrections) have met their responsibilities under the law . . . . "I reaffirm my solemn oath to uphold the law. It is the duty of my office to do so, on behalf of the people of Missouri."

Ervin's execution was the second carried out since Holden became governor in January, and the 48th since the state resumed executions in 1989.

He was convicted of killing both Mildred Hodges, 75 at the time of her death, and her son, Richard Hodges, 49, during a robbery of their Boonville Road home on Dec. 15 or 16, 1988. The two convictions came on Jan. 19, 1990, after a Callaway County jury heard the evidence in a Fulton trial, on a change of venue from Cole County. Circuit Judge Frank Conley imposed the jury's recommended death sentences in March 1990.

It was the second time Ervin faced a murder conviction: At the time of the Hodges murders, Ervin had been out of prison for nine years after serving 10 years of a life sentence imposed following his guilty plea to second-degree murder for the 1967 stabbing death of a St. Joseph cab driver.

While in the Missouri State Penitentiary at Jefferson City (now the Jefferson City Correctional Center), Ervin met Bert L. Hunter, another inmate serving a life sentence for an unrelated northwest Missouri murder.

Hunter also was convicted of killing the Hodges, a mother and son real-estate team, and stealing a car, jewelry, a fur coat and other items from their home. Hunter was executed last June 28 for his role in the two murders -- nine months to the day before Ervin's death by lethal injection.

Ervin's death at 12:04 a.m. came about three minutes after he received the first injection of sodium pentathol, a drug that causes unconsciousness. Right after that drug was given, he breathed heavily a couple of times and appeared to fall asleep.

Other drugs used in the execution process are pancronium bromide, which stops breathing, and potassium chloride, which causes the heart to stop working.

Seven people -- including three reporters and two law enforcement officers who helped investigate the Hodges murders -- witnessed this morning's execution for the state. No one from the Hodges family attended the execution. And the only man present at Ervin's request was identified as his "spiritual adviser."

That man, dressed in a priest's clothes, nodded and gave Ervin a slight smile when the blinds covering the execution room first were opened.

Ervin seemed to smile after that gesture from his witness, and was looking at the ceiling when the first injection was given at 12:01 a.m.

Kniest said Ervin's final meal included a sirloin steak, butterfly shrimp, corn, French fried potatoes, a roll, coffee and a chocolate shake.

Today's execution came after Holden, the state Supreme Court and the federal appeals and Supreme courts rejected legal pleas for a stay.

  


 

Tomas Ervin, 50, 2001-03-28, Missouri

Fight the Death Penalty in USA - FDP.dk

Tomas Ervin was executed early Wednesday for his role in the 1988 murders of an elderly Jefferson City woman and her son.

Ervin, 50, died at 12:04 a.m. Wednesday at the Potosi Correctional Center, 3 minutes after the first of three lethal drugs was administered.

He looked up from his bed at the state witnesses before coughing several times before falling back on to the pillow.

His last statement, according to corrections officials:

"When the courts of this nation refuse to afford a condemned prisoner the opportunity to prove that he is actually innocent of the crimes for which he stands condemned, the capital punishment system is broken," Ervin said. "The courts refused me that opportunity and so tonight, as it has done at least twice in the past, the state of Missouri executes an innocent man."

Ervin did not elaborate.

He was convicted in 1990 for the murders of Mildred Hodges, 75, and her son, Richard, 49.

Ervin's fate was sealed when Gov. Bob Holden decided not to grant clemency less than 3 hours before Ervin's scheduled execution. The U.S. Supreme Court also refused to halt the execution.

In an interview Tuesday, Ervin had said he believed there was still a chance the courts would grant a stay.

"The courts for the 1st time are actually taking a look at my innocence claim," he said.

The execution came 9 months to the day after the state executed Bert Hunter for the same killings. Hunter confessed to the 1988 murders and testified at trial that Ervin was his partner in the crimes.

Hunter said he and Ervin robbed the Hodges home on Dec. 15, 1988, under the impression Richard Hodges kept a large amount of cash at the house.

Hunter said the mother and son were killed because the assailants feared they had been recognized.

Both victims were found with plastic bags over their heads.

But Ervin maintained his innocence, insisting he was at home asleep when Hunter and another person committed the crimes.

"Hunter was staying at my house," Ervin said in an interview Tuesday with The Associated Press. "I had taken him to the doctor. I assumed he was sick in his bed with strep throat at the time.

"He left with someone else. I was none the wiser."

Both men were convicted of murder once before, in Ervin's case the 1967 slaying of a cab driver in Buchanan County. Ervin and Hunter met in prison, taught themselves computer programming and, once paroled, started working full time for the state Department of Revenue in the early 1980s.

Both ended up losing their jobs, said Cole County prosecutor Richard Callahan. He said both abused cocaine and started traveling across the south, committing robberies along the way, before they returned to Jefferson City.

Hunter wanted to rob banks, but Ervin convinced him house robberies were a safer bet, Callahan said.

"His ultimate motivation for testifying against Tommy was that he blamed Tommy for their predicament," Callahan said. "He was just unhappy that he had agreed to the house robberies."

It's the reliance on Hunter's testimony that formed the core of Ervin's final appeals. In them, Ervin argues his trial counsel was "constitutionally inadequate," making mistakes that included a failure to play for the jury -- as promised -- a tape of Hunter's guilty plea.

In that plea, Hunter tells a judge Ervin was not involved in the murders.

"When you look at all of the things that Hunter has said on different occasions, you see just a wide variety of explanations of events," John Osgood, Ervin's current attorney, said. "If you attempt to corroborate those, you find it's replete with lies.

"It makes his testimony very suspect."

Hunter also said Ervin was not involved during a polygraph test administered by the state. The results of that test, inadmissible in Missouri courts, and Hunter's subsequent statements about the test, which are admissible, were not presented to the jury.

"It is reasonable to assume that the outcome of the trial would have been different if Hunter's provocative videotaped and post-polygraph testimony had been presented to the jury," wrote Judge Gerald W. Heaney, of the 8th Circuit, in a dissent to the court's Tuesday order denying Ervin a stay.

Heaney concluded that Ervin's deserved a new trial.

Callahan dismissed the issue, saying he feels the jury would have found Ervin guilty even if Hunter had not testified.

Hunter's testimony "was an import and key development, but there was enough circumstantial evidence to tie Ervin to the murders," Callahan said.

Ervin becomes the 2nd condemned inmate to be put to death this year in Missouri and the 48th overall since the state resumed capital punishment in 1989.

Missouri trails only Texas (244), Virginia (82), and Florida (51) in the number of executions carried out since the death penalty was re-legalized on July 2, 1976.

(sources: Associated Press & Rick Halperin)

  


 

194 F.3d 908 (8th Cir. 1999)

Tomas G. Ervin, Appellant,
v.
Paul K. Delo, Superintendent, Potosi Correctional Center; Michael Bowersox, Superintendent, Potosi Correctional Center, Appellees.

No. 97-1435

United States Court of Appeals For the Eighth Circuit

Submitted: June 14, 1999
Filed: October 18, 1999

Appeal from the United States District Court for the Western District of Missouri.

Before BOWMAN, HEANEY, and FAGG, Circuit Judges.

FAGG, Circuit Judge.

Tomas G. Ervin, a Missouri death row inmate, appeals the district court's denial of his 28 U.S.C. 2254 habeas petition challenging his first-degree murder and robbery convictions. We affirm.

On December 19, 1988, the body of Richard Hodges was discovered in a ditch near Jefferson City, Missouri. Duct tape bound Richard's hands and covered his nose and mouth. An autopsy revealed Richard had been suffocated to death. The same day,police obtained a warrant to search the Jefferson City home where Richard lived and operated a real estate business with his mother. When officers entered the house, they found the body of Richard's mother, Mildred, wrapped in garbage bags on the living room floor.

In their search for evidence, police found a note pad beneath a remote control in the bedroom across the hall from the Hodgeses' office. On the pad's top sheet, someone had written a license plate number. An officer tore off the top sheet and placed it in a box with other papers. In the garage, police discovered the Hodgeses' Lincoln Continental was missing and there were bloodstains on the floor near the vacant parking spot. The police found no identifiable fingerprints other than those of the victims and an investigating officer.

On the night of January 14, 1989, the Hodgeses' Lincoln was discovered burning in the parking lot of a Paducah, Kentucky motel. A week later, their credit cards were found near a dumpster behind a supermarket in Jefferson City. On January 24, officers made a final sweep through the Hodgeses' home before releasing it to the Hodgeses' estate. Officers found the note pad with the indentation of a license number, made when someone had written on the sheet above, which other officers had already removed.

For the first time, police called in the license number and learned it belonged to an automobile registered to local resident Ervin. Although police did not recognize the name, they decided to question Ervin, and developed a list of his associates, which included a man from Florida named Bert Hunter.

At the request of the police, Ervin came to the Jefferson City police station on February 1. During an interview, Ervin told police officers he did not know the Hodgeses. He also said that in the preceding two months, he had not lent his car to anyone or been on the road where the Hodgeses lived. Ervin said he believed he was traveling around the time of the Hodgeses' murders on December 15 and had credit card receipts at home to prove it. He also denied having seen or been with Hunter in. December.

The officers asked whether they could see the credit card receipts, and Ervin agreed to show them at his house. After following Ervin to his home, the officers entered and saw stacks of receipts on the kitchen table. Over Ervin's shoulder, an officer saw a Florida license number on one of the gas receipts dated December 21. When police ran the number later, they learned it belonged to Hunter's car.

On February 17, police executed a search warrant at Ervin's home and seized a roll of duct tape, credit card receipts, telephone bills, and a newspaper. The newspaper contained an article about the Hodgeses' murders, with highlighting on text stating the cause of Mildred's death might have been a heart attack. One of the credit card receipts showed Ervin had paid for medical treatment for Hunter in Jefferson City on December 12, 1988. Telephone records showed that on the day before the Hodgeses' car was set on fire in Paducah, Ervin had called Hunter in Florida from Malden, Missouri, a town only one hundred miles from Paducah.

On February 22, police brought Hunter back from Florida on a parole violation.They questioned him the next day about the Hodgeses' murders, and Hunter denied he or Ervin was involved. On March 7, Hunter repeated his denials, but asked about a $10,000 reward offered by the Hodgeses' estate. The police told Hunter the offer had been revoked.

About a week later, on March 15, Hunter told officers he would tell them about the murders if they would put two of his friends on probation and leave another friend alone. Hunter confessed that he and Ervin killed the Hodgeses in a plot to get money. After police obtained a video camera, Hunter refused to put his confession on videotape. When he later pleaded guilty to the murders, the plea was videotaped, and Hunter admitted he and another man killed the Hodgeses and gave a detailed account of the murders, but he refused to say who the man was and specifically denied the man was Ervin.

During Ervin's trial, however, Hunter explained how he and Ervin murdered Richard and Mildred. According to Hunter, in late November 1988, he visited Ervin. in Missouri. The men were broke and discussed criminal schemes to get money. Hunter suggested robbing a bank, but Ervin wanted to kidnap someone rich from their home and force them to withdraw their money from their bank account. They would then suffocate the victims and dispose of their bodies in a trash incinerator.

The men decided to pursue Ervin's idea and drove around Jefferson City looking for possible targets, but did not choose one before Hunter returned to Florida. On December 4 and 5, Ervin visited Hunter in Florida, where Ervin bought rubber gloves to use when carrying out their plan. The men then returned together to Missouri, where Hunter stayed with Ervin. Hunter was ill with strep throat and Ervin paid for Hunter's medical treatment on December 12. Despite Hunter's malady, the men resumed their search for a victim.

When they spotted a Lincoln Continental in the Hodgeses' driveway on December 15, they believed they had found the wealthy prey they sought. Ervin pulled his car into the drive, which was visible from the Hodgeses' office. Posing as a messenger with an envelope, Hunter went to the door, and Mildred opened it. Hunter forced his way inside with a gun, and Ervin followed him with a sack of tools for their evil plot, including duct tape, rubber gloves, and garbage bags. Mildred panicked and called to Richard for help. He came out of the office and demanded his mother's release. Richard informed the intruders that his elderly mother had a heart problem, and Hunter told Richard to calm her down. Richard took his mother into a bedroom across the hall from the office and, at Hunter's direction, bound her limbs with duct tape.

In the meantime, Richard and Mildred told them all their money was tied up in a trust fund and they had none in the bank. They promised they would not call the police if the men would simply leave the house. Richard also told the men that someone from the newspaper was coming by the house soon to pick up an advertisement for the realty company. Alarmed at this prospect, the men started to move quickly. They left Mildred on the bed and took Richard to the living room, where they bound his hands and feet with duct tape.

Hearing a noise in the bedroom, Hunter returned and found Mildred standing in front of a dresser. Hunter retaped her,left her on the hallway floor, and returned to the living room, where Ervin was putting duct tape over Richard's mouth and nose. Richard complained he could not breathe, and Ervin responded, "That's the general idea." Frenzied, Richard initially broke free, but the men subdued and rebound him. While Hunter smothered Richard in the living room, Ervin put a trash bag over Mildred's head and suffocated her.

The killers stole Richard's wallet and Mildred's purse and left in Ervin's car. Shortly after midnight, they returned to the scene of the crime. Wearing rubber gloves, they wrapped the victims' bodies in trash bags and sealed the bags with duct tape.They ransacked the house and found some jewelry, furs, Scotch whiskey, and $16 in cash.

They then dragged Richard's body into the garage and put it into the back seat of the Hodgeses' Lincoln. Because Hunter was too weak from his illness to help hoist Richard's body into a trash incinerator, the killers dumped Richard's body in a rural ditch instead. They returned to the house for Mildred's body, but decided to leave it there because it emitted fluids and an unpleasant smell when they tried to move it. They left the Lincoln in a crime-ridden area with the keys in the ignition, hoping the car would be stolen.

A few days later, they changed their minds and decided to use the Lincoln as a getaway car in future criminal activity. They recovered it and, on the way to Florida, drove through Paducah, where they scouted banks to rob. While there, they learned the Hodgeses' bodies had been found and they abandoned the Lincoln at a Paducah motel.

Ervin and Hunter then made several trips between Jefferson City and Florida continuing in their quest for a bank to burgle. In Florida on December 31, Hunter and Ervin met with friends Dennis Woodrum and Anne Tepo, and, in Ervin's presence, Hunter gave Tepo a bag of jewelry that belonged to Mildred as a "late Christmas present." On January 4, 1989, Ervin and Hunter parted ways. Ervin returned to Jefferson City, but soon called Hunter in Florida to express concern about incriminating evidence left in the Lincoln. Later, Ervin called Hunter and, alluding to the car, stated "he had been to a weenie roast."

When asked about his guilty plea and other statements exonerating Ervin, Hunter explained he was trying to protect a friend and to be "a good convict" when he said Ervin was not involved. Hunter also testified the State was not giving him a sentencing deal in exchange for his testimony and the State was pursuing the death penalty in his case. Indeed, Hunter was later sentenced to death. See Hunter v. Bowersox, 172 F.3d 1016, 1018 (8th Cir. 1999) (affirming denial of Hunter's federal habeas petition).

Besides Hunter's testimony that he and Ervin killed the Hodgeses in an effort to get money, other evidence at trial pointed to Ervin and corroborated Hunter's testimony. Officers testified about finding the paper with Ervin's license plate number scrawled on it in the Hodgeses' home, and handwriting experts testified Richard had probably written it. Police also found the marked-up newspaper clipping in Ervin's house with the highlighting on the uncertain cause of Mildred's death.

Credit card receipts showed Hunter was in Jefferson City with Ervin where Ervin paid for Hunter's medical treatment on December 12, and Ervin was with Hunter in his car on December 21 when they bought gasoline. The receipts thus established Ervin had falsely denied to police that he was not with Hunter in December 1988, and showed Ervin's consciousness of guilt. Tepo and Woodrum testified Ervin was with Hunter when Hunter gave Tepo the jewelry in Florida two weeks after the murders, and others testified the jewelry belonged to Mildred. An officer testified Ervin's home is near the supermarket where the Hodgeses' credit cards were found. Thus, although there was no direct evidence besides Hunter's testimony that Ervin was the one with Hunter in the Hodgeses' house, the jury could infer Ervin was there from powerful circumstantial evidence.

Ervin did not testify, but the defense suggested Hunter's accomplice was someone other than Ervin. The defense tried to cast suspicion on Patrick Connell, an occasional associate of Hunter and Ervin. Although Connell lived near the spot where Richard's body was found, Ervin had once lived in the same general area. The defense also pointed to the discovery of an unidentified hair in one of the garbage bags put around the bodies. Connell's hair was not tested, but his hair was referred to in testimony as blond, while the hair found in the bag was dark. The defense also proposed that Hunter changed his story to implicate Ervin because of anger at a supposed betrayal. Witness testimony also provided Ervin with a possible alibi for the night the Lincoln was burned. Nevertheless, the defense offered no reason why Ervin's car would have been at the Hodgeses' home without him or why Ervin lied to police about being with Hunter in December.

After hearing all the evidence, a Missouri jury convicted Ervin of two counts of first-degree murder and one count of first-degree robbery. Acting on the jury's recommendation, the trial court sentenced Ervin to death. Later, the same trial court overruled Ervin's motion for postconviction relief. See Mo. S. Ct. R. 29.15. In a consolidated opinion, the Missouri Supreme Court affirmed Ervin's convictions, sentence, and the denial of his Rule 29.15 motion. See State v. Ervin, 835 S.W.2d 905, 912 (Mo. 1992). The United States Supreme Court denied Ervin's petition for certiorari. See Ervin v. Missouri, 507 U.S. 954 (1993). Ervin then filed a habeas petition in federal district court challenging his state-court convictions. The district court denied relief, but certified four issues for appeal. We turn to them now.

Ervin first contends his right to effective assistance of trial counsel was violated when his attorney failed to play the videotape of Hunter's guilty plea during trial.Although Hunter implicated Ervin in his trial testimony and in one police interview, Hunter had exonerated Ervin during his guilty plea and on other occasions. On the videotape, Hunter repeatedly said Ervin was innocent of the murders. Ervin asserts his attorney should have played the tape to impeach Hunter's trial testimony.

To prevail on his ineffective assistance of counsel claim, Ervin must show his attorney's performance fell below an objective standard of reasonableness and the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To establish his attorney's performance was objectively unreasonable, Ervin "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). To show prejudice, Ervin must establish a reasonable probability that he would have been acquitted absent the allegedly unprofessional error. See id. at 694.

During an evidentiary hearing, defense counsel testified he knew Hunter's testimony was important to the state's case, but he decided not to play the tape because he wanted to avoid a rehash of the killings' grisly details, which might be the last thing the jury would hear. Lead defense counsel had not personally viewed the tape, but he read the transcript and his co-counsel viewed the tape and discussed its contents with him. In Ervin's direct appeal, the Missouri Supreme Court noted the postconviction court had "found that defense counsel could reasonably decide not to reprise the story of the Hodgeses' deaths to the jury as a matter of trial strategy," and concluded the postconviction court's finding was not clearly erroneous. Ervin, 835 S.W.2d at 930.

Even though Ervin's attorney had told the jury he would play the tape of Hunter's guilty plea, he could reasonably change his mind. During the state's case, Hunter had admitted exonerating Ervin during his guilty plea and on other occasions, and defense counsel cross-examined Hunter about his inconsistent statements. Defense counsel also cross-examined police officers about Hunter's statements to them exonerating Ervin.

Rather than playing the videotape during the defense case, defense counsel chose to elicit testimony from Hunter's parole officer, who said that in discussing the murders with him, Hunter had expressly denied that Ervin was his accomplice. Although it is a close question, we conclude Ervin has not overcome the presumption that defense counsel used sound trial strategy. See Gillette v. Tansy, 17 F.3d 308, 311 (10th Cir. 1994) (defense counsel's choice of means to impeach a witness was reasonable trial strategy). Also, because the jury knew Hunter had exonerated Ervin several times--before a judge, his parole officer, and police officers-- there is not a reasonable probability Ervin would have been acquitted if defense counsel had played the tape for the jury.

Second, Ervin claims his right to due process was violated when the trial court denied his motion to strike venireman Crane for cause, forcing Ervin to use a peremptory challenge to preclude Crane from being seated on the jury. "Peremptory strikes are created and governed by state law, and the due process clause guarantees only that the state must apply its own rules fairly." Sloan v. Delo, 54 F.3d 1371, 1387 (8th Cir. 1995); see Ross v. Oklahoma, 487 U.S. 81, 89 (1988). At the time of Ervin's trial, Missouri law entitled a criminal defendant to a "full panel of qualified jurors before being required to make peremptory challenges" and held the failure to sustain a meritorious challenge for cause is reversible error. State v. Wacaser, 794 S.W.2d 190, 193 (Mo. 1990); accord State v. Lang, 795 S.W.2d 598, 600 & n.1 (Mo. Ct. App. 1990); see Sloan, 54 F.3d at 1387.

Ervin argues Crane was not a qualified juror under Missouri law because Crane failed to disclose his store had been burglarized when asked whether he was a crime victim. See State v. Moorehead, 875 S.W.2d 915, 917 (Mo. Ct. App. 1994) (prospective jurors must fully, fairly, and truthfully answer all questions on voir dire so the attorneys can assess their qualifications and intelligently exercise challenges; venireperson may be stricken for cause when the venireperson intentionally conceals the truth to a question explored on voir dire).

During voir dire, defense counsel asked the venirepersons to raise their hand if they had been the victim of crime. Although other venirepersons raised their hand, Crane did not. A local attorney watched voir dire to help the defense counsel select a jury, but he did not sit at the defense table, take part in voir dire, pose any questions, or communicate with counsel. After voir dire was completed and the court had released the venire panel from the courtroom, the local attorney asked the court to strike venireman Crane for cause, stating Crane had "been burglarized . . . on several occasions. He refused and did not make any response to the specific question if he was a victim of a crime." Ervin did not request any further examination of Crane, and the court summarily overruled the challenge.

In dealing with this issue, the Missouri Supreme Court apparently confused venireperson Crane with venireperson Watts, and erroneously stated Crane responded affirmatively when asked whether he had been a victim of a crime, saying his car had been stolen a year and a half ago. See 835 S.W.2d at 916-17; Trial Trans. at 180-81 (voir dire of venireperson Watts). The transcript reflects that Crane did remain silent when asked to report victimization. See Trial Trans. at 179-94. Nevertheless, the Missouri Supreme Court noted the burden is on the party proposing the strike to probe into grounds for disqualification on voir dire, and without proof that Crane's store had been burglarized, the trial court was not required to strike Crane for cause. See 835 S.W.2d at 917.

Because the Missouri Supreme Court faulted Ervin for failing to make an adequate record that Crane's store had been burglarized, the district court held the issue is procedurally barred in federal habeas. The district court observed Ervin could have asked the trial court to call Crane to chambers to verify counsel's information and to explain his failure to respond to the question at voir dire. Later, during postconviction proceedings or direct appeal, Ervin could have submitted materials showing Crane's store had been burglarized, but Ervin did not do so. Ervin's failure to develop the facts in state court proceedings, or to show cause for the failure and resulting prejudice, precludes federal habeas review. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 8 (1992).

Third, Ervin asserts the admission of certain evidence at trial violated due process. During the prosecution's direct examination of Hunter, defense counsel objected several times to the prosecutor's use of leading questions. When the prosecutor asked Hunter what happened after he and Ervin abandoned the Lincoln, Hunter responded, "[W]e had came back to Jefferson City. But at that point [we] had no getaway car. So at that point we needed a gun . . . [and] Tommy [Ervin] acquired a shotgun from a pickup truck in Jefferson City. And we were still driving up and looking at banks . . . ." Trial Trans. at 370-71.

Ervin's counsel objected that the shotgun was not relevant, and at the bench, the prosecutor responded that leading questions helped avoid Hunter's blurting out that they went to Florida right after they robbed the bank. Defense counsel told the prosecutor to "go back the way you were" in asking leading questions, but did not request an instruction about the shotgun evidence or the evidence that the men were "looking at banks." Later, before cross-examination, defense counsel asked for a mistrial. The trial court denied a mistrial and criticized defense counsel for not asking for a jury instruction earlier.

The Missouri Supreme Court reviewed admission of the evidence for plain error, and found none. See 835 S.W.2d at 918-20. We choose to review for plain error also. See Sweet v. Delo, 125 F.3d 1144, 1152 (8th Cir. 1997), cert. denied, 118 S. Ct. 1197 (1998). Plain error exists when there was an obvious, prejudicial mistake that affected the trial's outcome. See United States v. Olano, 507 U.S. 725, 732-35 (1993). We cannot say admission of the evidence was so prejudicial that it affected the outcome of Ervin's trial. Ervin also challenges the admission of Tepo and Woodrum's later testimony, admitted over defense counsel's objection, that they saw Ervin with the shotgun. We cannot say there is a reasonable probability Ervin would have been acquitted had the evidence been excluded. See Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995) (standard for due process violation).

Ervin last attempts to show cause for his failure to raise certain issues during postconviction proceedings. According to Ervin, he could not assist his postconviction counsel because he had severe clinical depression, and he asserts the district court should have granted him a hearing to establish his depression's severity.

"[T]he existence of cause for a procedural default must ordinarily turn 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); see also Cawley v. DeTella, 71 F.3d 691, 696 (7th Cir. 1995) (depression not an external impediment). For mental illness to excuse the procedural bar arising from the failure to pursue state postconviction remedies, the petitioner must make a conclusive showing that he or she was incompetent at the time of the postconviction proceedings. See Nachtigall v. Class, 48 F.3d 1076, 1081 (8th Cir. 1995). To be deemed incompetent, the petitioner must have been "'suffering from a mental disease, disorder, or defect that may substantially affect his capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation.'" Id. (quoting Anderson v. White, 32 F.3d 320, 321 (8th Cir. 1994)).

To show a hearing was justified, Ervin attached affidavits from postconviction counsel and a licensed psychologist. Postconviction counsel said Ervin was "still in a state of shock over the conviction and very much in denial . . . it became clear to me that he was severely depressed. He complained to me of having trouble sleeping and I believed his thought processes to be impaired." Ervin's suggestions to the postconviction attorney were "incomprehensible and he could not seem to understand the legal issues."

In postconviction counsel's opinion, Ervin "clearly was not able to assist [her] in any rational manner." The psychologist met with Ervin once and could not completely evaluate Ervin because he did not want to participate. Nevertheless, the psychologist could "state emphatically that this was a man with classic symptoms of a major depressive disorder." She found, "He lacked the energy to engage in the legal process. . . . When [she] saw Ervin, he would not have had the capacity to assist counsel."

The district court decided a hearing would not be productive and the alleged depression could not amount to cause excusing Ervin's procedural default. We agree.As the district court observed, Ervin's alleged depression did not hinder his ability to file a pro se postconviction motion. See Malone v. Vasquez, 138 F.3d 711, 719 (8th Cir.) (mental illness that does not hinder ability to file pleadings is not cause for default), cert. denied, 119 S. Ct. 384 (1998). Further, Ervin was represented by postconviction counsel and there is no evidence Ervin was unable to consult with her. See id.; Stanley v. Lockhart, 941 F.2d 707, 709-10 (8th Cir. 1991) (possibility that pro se adult petitioner might not have been able to participate effectively in his own defense given diagnoses of childhood schizophrenia insufficient to show incompetence at time of procedural default). Because Ervin did not make a sufficient showing of incompetence at the time of his state-court default, we conclude the district court did not abuse its discretion in denying an evidentiary hearing.

Having rejected Ervin's challenges to his convictions, we deny his petition for a writ of habeas corpus.

*****

HEANEY, Circuit Judge, dissenting.

Because I believe Ervin was denied effective assistance of counsel at trial, and because I believe Ervin's Fifth Amendment right to due process may have been violated by the trial court's failure to ensure a panel of twelve qualified jurors, I respectfully dissent.

I.

Hunter's testimony was the key to the state's case against Ervin. On cross-examination, Ervin's counsel attempted to seize upon Hunter's prior inconsistent statements exonerating Ervin, including Hunter's statements in support of his guilty plea. However, according to Ervin's trial attorney, Hunter's testimony had been "devastating" and "somewhat . . . a surprise." (Postconviction Hr'g Tr. at 19, 25.) The defense was called upon to begin its case at 5:06 p.m. on the second day of trial, after the jury sat through a full day of prosecution testimony concerning, among other things, the autopsies performed on the Hodgeses. Voicing no objection to proceeding at that hour, counsel gave an opening statement outlining the evidence he would present, including evidence that Hunter had previously denied Ervin's involvement in the crime. Chief among this evidence was a videotape of Hunter's guilty plea in which Hunter repeatedly insists that Ervin was not involved in the murders. Counsel told the jury:

And most importantly and finally, I hope to be able to play the tape and I hope we can shorten it up as much as possible of Bert Leroy Hunter's plea of guilty in front of Judge Kinder to show what he actually said then on the 21st of July.

(Tr. Vol. II at 659 (emphasis added).)

The videotape was crucial to Ervin's defense, crucial to undermining the credibility of the prosecution's key witness, Hunter. The defense's entire presentation lasted just a few hours. When the court was adjourned at 9:55 p.m., some thirteen and one-half hours after it was called to order that morning, the defense had rested and the state had begun its rebuttal. The jury, however, had not seen the videotape. After emphasizing the importance of the videotape to the jury, counsel (trying his first capital case) had changed his mind. At the state postconviction hearing, counsel explained he had decided-apparently in the middle of presenting Ervin's case-that he did not want the jury to hear "the gruesome tale" of the murders yet again. (Id. at 29.)

At the outset, I view counsel's performance in the context of the breakneck pace of this trial: the first day of trial lasted until 8:36 p.m., the second day from 8:30 a.m. until 9:55 p.m., the jury began its deliberations in the guilt phase of the trial shortly after noon on the third day, and was sent home at 9:45 p.m. that night after imposing the death penalty. I believe it is impossible to conclude that the failure to present the videotape to the jury was the product of a sound strategic choice. Rather, it was an error either of judgment or neglect by counsel who never viewed the videotape himself (Postconviction Hr'g Tr. at 34), and who acquiesced in the court's instruction to proceed with Ervin's defense at a time when I believe most jurors would rightfully have been somnolent. And although it is only hinted at in the record, I am deeply disturbed by the suggestion that the galloping pace of this trial, at which Ervin's life was at stake, reflected concern that the trial be concluded before the start of a "big basketball game."1 (Postconviction Hr'g Tr. at 58-59.)

I believe the videotape would have inflicted serious damage to Hunter's credibility. In it, a relaxed and personable Hunter recounts how he and another man caused the deaths of the Hodgeses, and declares repeatedly that Ervin is "the wrong guy." All the while, Hunter displays the same disarming and disturbing apparent candor reflected in his trial testimony implicating Ervin. I believe the jury was entitled not only to learn of the fact of Hunter's prior inconsistent statement exonerating Ervin, but also to observe in a videotaped close-up Hunter's demeanor and presence in so doing.

Second, counsel's failure to offer Hunter's videotaped guilty plea left the jury to speculate as to why it was not allowed to view the videotape. Regardless of the substance of the videotape, I believe counsel could not reasonably have expected the jury to ignore the glaring absence of what Ervin's attorney announced a few hours earlier to be the keystone of his defense.

II.

With respect to the trial court's denial of Ervin's motion to strike venireperson Crane for cause, I believe the majority incorrectly applies Keeney v. Tamayo-Reyes, 504 U.S. 1, 8 (1992), to conclude that Ervin is barred from further developing the factual record in federal court. Because the trial court summarily rejected Ervin's challenge to Crane and denied him an opportunity to fully and fairly develop the record in state court, I believe Ervin may not be blamed for the inadequacy of the record, and is therefore entitled to an evidentiary hearing in federal court to determine whether Crane should have been stricken from the venire. See Townsend v. Sain, 372 U.S. 293, 313 (1963). If Crane had in fact been a crime victim and Ervin was thus forced to use a peremptory challenge to exclude Crane, Ervin's due process rights were violated. See Sloan v. Delo, 54 F.3d 1371, 1387 (8th Cir. 1993) (stating that due process requires that state follow its own rules with respect to peremptory challenges); State v. Wacaser, 794 S.W.2d 190, 193 (Mo. 1990) (en banc) (holding that under Missouri law, defendants are entitled to "full panel of qualified jurors before being required to make peremptory challenges").

III.

For the foregoing reasons, I believe Ervin is entitled to habeas relief.

*****

Notes:

1

See Mizzou Ready to Topple KU, Seattle Times, January 20, 1990 ("The game may prove to be the best of 219 matchups between the longtime arch-rivals.").

 

 

 
 
 
 
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