On March 2, 1985, Missouri State Trooper Froemsdorf stopped a car
for speeding 60 miles south of St. Louis. The driver was Jerome
Mallett, a felon who lived in Dallas and who was wanted on a robbery
and probation violation.
Froemsdorf handcuffed Mallett and put him in the front seat of his
patrol car. While the trooper was writing a ticket, Mallett, who had
a deformed right wrist, slipped one hand out of the handcuffs and
fought Froemsdorf for his .357-Magnum revolver.
Froemsdorf was shot once into his bulletproof vest and twice in his
neck. His pistol was found several hours later in Mallett's
abandoned car. Hundreds of officers came into the community for the
funeral and helped to conduct a house to house seach.
Mallett was hiding in a vacant house and when he was arrested three
days after the murder in Desloge, the handcuffs still dangled from
his left hand.
Capital Punishment in Missouri
On the evening of March 2, 1985, around 5:30
p.m., Jerome Mallett was pulled over for speeding on Interstate 55
in Perry County by Trooper James Froemsdorf. Before the trooper
approached the vehicle, Mallet hid his wallet and identification
under the front seat of the ear.
When the Trooper asked for his driver’s license,
Mallett replied that he did not have it with him. When Trooper
Froemsdorf asked him his name, Mallett used his brother Anthony
Mallett’s name to escape detection.
The Trooper then handcuffed
Mallett and searched the car. He found several items bearing the
name of Jerome Mallett, including the driver’s license Mallett had
The Trooper returned to his car and called the
Highway Patrol radio dispatcher to run a check on the driver’s
license. The dispatcher informed Trooper Froemsdorf that Mallett was
wanted in Texas on four warrants for probation violation and one
warrant for aggravated robbery.
At 5:40 p.m., Trooper Froemsdorf, in
his last radio transmission, told the dispatcher that Mallett was in
custody, that he needed no assistance, and that the dispatcher could
contact him next at the Perry County Sheriffs Office.
At approximately 6:00 p.m., a passing motorist,
curious at seeing an apparently unoccupied patrol car with its red
lights flashing, stopped to investigate and found Trooper
Froemsdorf’s body. The inside of the Trooper’s car was a shambles
with evidence of a struggle.
Found in the patrol car was Mallett’s
driver’s license and the other items the Trooper had taken in the
search of Mallett’s car. Missing from the Trooper’s car was his .357
magnum service revolver. On the hood of the car investigators found
Mallett’s hand print.
Around 7:00 p.m. that evening a St. Francois
County deputy sheriff sighted Mallett’s truck and began a pursuit.
The chase ended with Mallett missing a turn, running up an
embankment and crashing through a fence into a field. Mallett then
fled on foot. On the floorboard of Mallett’s car the deputy found
Trooper Froemsdorf’s service revolver.
Mallett then swam across a river and spent the
first night in a car in a nearby garage. Realizing that authorities
were looking for him, Mallet spent the next day hiding in various
locations, but when he went to a fast food restaurant he was
apprehended after a brief pursuit.
Mallett still had Trooper
Froemsdorf's handcuffs secured to his right wrist. It was later
discovered that Mallett had suffered an injury as a child which
allowed him to compress his hand to nearly the size of his wrist and
slip out of the handcuffs.
Mallctt was transported to a highway patrol
station where he waved his Miranda rights and gave a videotaped
confession. He admitted to shooting the Trooper, but claimed it was
an accident. In the investigation of the killing of Trooper
Froemsdorf an autopsy was performed which disputed the claim of an
03/02 - Jerome Mallet shot and killed Missouri State Highway Patrol
Officer James Froemsdorf on Interstate 55 in Perry County, Missouri.
05/13 - Mallett is charged by information with Murder First Degree.
01/13 - Mallett's trial begins on a change of venue from Perry
County to Schuyler County.
01/22 - Mallett is found guilty of Murder First Degree.
01/23 - The jury recommends the death sentence for Mallett.
03/07 - Mallet is sentenced to death by the court.
03/17 - Mallett files a motion for appeal.
06/16 - The Missouri Supreme Court affirms the conviction and
11/25 - Mallett files a motion for post-conviction relief in the
Schulyer County Circuit Court.
06/06 - The Circuti Court grants in part and denies in part the
montion for post-conviction relief.
04/18 - The Missouri Supreme Court affirms in part and reverses in
part the post-conviction judgment. The conviction and sentence are
02/26 - The United States Supreme Court denies certiorari review.
03/09 - Mallett files a petition for writ of habeas corpus in the
U.S. District Court for the Eastern District of Missouri.
07/29 - The District Court denies the petition for writ of habeas
corpus in an unpublished order.
11/16 - The U.S. Eighth Circuit Court of Appeals affirms the denial
10/04 - The U.S. Supreme Court declines discretionary review.
10/04 - The State requests the Missouri Supreme Court to set an
06/05 - The Missouri Supreme Court sets July 11, 2001 as Jerome
Mallett's execution date.
National Coalition to Abolish
the Death Penalty
Jerome Mallett Execution Date and Time: 7/11/01,
On March 2, 1985 Jerome Mallett was pulled over
for speeding on Interstate 55 in Perry County, MO by a state trooper.
Mallett had violated probation four times, and, after robbing a
jewelry store in Texas, was also wanted on a warrant for aggravated
When the state trooper checked with his dispatcher, he
resolved Mallett’s identification and took him into custody.
Before leaving the area, Mallett, who is black,
escaped handcuffs and struggled with the trooper inside the patrol
car, which resulted in Mallett shooting and killing him. He was
later captured in St. Francois County, after an extensive search
that lasted days.
On April 15th of the same year, a Missouri State
Highway Patrol stopped the vehicle of David C. Tate at a traffic
check on Highway 86 in Taney County, Missouri. As the two troopers
performing the check for licenses and registrations approached, Tate
opened fire on them both, killing one officer and severely wounding
During the initial investigation of the crime
scene, highway patrolmen ascertained that Tate was part of a white
supremacist group and known to carry several high powered weapons.
Much the same as Mallett, he had a prior history of violence, and,
as an examination of evidence ensued, investigators discovered
Tate’s volatile appetite for stockpiling guns and explosives.
David Tate was later convicted of murder and assault in the first degree (with
an intent to kill) and was sentenced to life imprisonment, in
addition to receiving sentencing on counts of federal weapons
violations. Jerome Mallet, however, received a very different fate
than David Tate at the hands of a judge and jury in Schuyler County,
The disparity between Mallet’s and Tate’s
respective fates highlighted the target point of contention in
Mallet’s case: racial bias. Mallet and his attorneys contend that
significant factors inherent to the process of law in Missouri
severely hindered Mallet’s ability to have a fair trial and, even
more so, a fair sentencing.
As reiterated in court documents, Mallet
requested a retrial on the grounds of an “appearance of [a] hostile
trial atmosphere”, a “disproportionate nature of punishment” and a
“violation of equal protection and due process.” When the case was
first brought to trial, it received a great deal of media publicity
and thus, afraid that the racial overtones of the case would
jeopardize its integrity, Mr. Mallett requested a change of venue
from Perry County, MO.
More importantly, Mallett’s request was made in
the hope that a county chosen would include members of his race, for
the sake of fair jury selection. Quite contrary to that request, the
judge arbitrarily selected Schuyler County, on the Missouri-Iowa
border, which contained no black residents.
Hence, it was foretold
that Jerome Mallett would be pleading his case to an all-white jury,
and, further complicating matters, the trial judge from Schuyler had
already demonstrated a biased investment in the case prior to trial;
he had sent a plaque to the highway patrol in honor of the slain
During the proceedings of appeal, Mallett’s
counsel sought to reinforce the notions of “disproportionality of
punishment” and racial discrimination in application of the death
They cited numerous statistics that demonstrated a
developing consistency between the racial profile of the accused and
the decision for lethal sentencing within the state of Missouri,
going so far as to say that killers of whites are more likely to be
sentenced to death than killers of non-whites. The court refused to
acknowledge that such discrimination was intended and disregarded
Yet the appeal decision hardly convinced Mallett
and his attorneys that their assertions were ungrounded or a
In a 4-3 Missouri Supreme Court
decision, the three dissenting judges agreed that, in light of the
Tate case, the sentencing should be reduced accordingly to life
imprisonment. Judge Blackmar’s opinion stated that “the comparison
to the Tate case [was] patent” and reasoned that “Tate’s having shot
and seriously wounded a second trooper with intent to kill”
qualified similarly with the court’s attempt to establish that
Mallett’s killing had been particularly premeditated.
Evidence of unfair litigation against Jerome
Mallett permeated the entirety of his judicial process. After
sentencing, he was denied the motion of Circuit Judge Ronald Belt,
who did in fact call for re-trial on the basis of prejudicial
treatment in jury selection; the motion was overturned by the
Missouri Supreme Court.
The latest developments in Jerome’s Mallet’s
execution schedule come at time when the Justice Department has
released a report on the Federal Death Penalty System that argues
that racial bias does not affect the sentencing (via a
disproportionality) of federal death row inmates.
The American Civil Liberties Union (ACLU)
submitted a response to the report that targeted major
methodological flaws in the study and questioned the reliability of
in-house research. It recommended a review “conducted by an outside
entity” and further challenged Congress to act on Senate Bill 233
and House Bill 1038, which would suspend federal executions and
establish a commission to review the “fairness...of the death
penalty at both the federal and state levels.” Jerome Mallett’s case
would certainly qualify for study, but until any moratorium action
can be taken, he will remain on death row.
Jerome Mallett was sentenced to die for the March
2, 1985 shooting death of Missouri Highway Patrol officer James F.
Froemsdorf, a father of three.
On March 2, 1985, Trooper Froemsdorf stopped a
speeding Ford on northbound Interstate 55 in Perry County, about 60
miles south of St. Louis. The driver was Jerome Mallett, a felon who
lived in Dallas and who was wanted on a robbery and probation
Froemsdorf handcuffed Mallett and put him in the
front seat of his patrol car. While the trooper was writing a
ticket, Mallett, who had a deformed right wrist, slipped one hand
out of the handcuffs and fought Froemsdorf for his .357-Magnum
revolver. Froemsdorf was shot once into his bulletproof vest and
twice in his neck. His pistol was found several hours later in
Mallett's abandoned car.
Hundreds of officers came into the community for
the funeral and helped to conduct a house to house seach. Mallett
was hiding in a vacant house and when he was arrested three days
after the murder in Desloge, the handcuffs still dangled from his
Missouri Executes Killer of State Patrolman
New Hampshire Coalition Against
the Death Penalty
POTOSI, Mo. (Reuters) - Jerome Mallet, who killed
a Missouri state trooper during a traffic stop in 1985, was executed
early Wednesday. Death penalty opponents raised questions of racial
Mallett, 42, was pronounced dead at 12:06 a.m.
Wednesday after receiving a lethal injection of drugs at the Potosi
Correctional Center, said prison spokesman Tim Kniest.
Mallett, who claimed he shot Missouri State
Highway Patrolman James Froemsdorf in self-defense after wrestling
away the lawman's gun, said in a final statement: "My heart and best
wishes to the Froemsdorf family. I hope everybody can just move on
now and this can be a learning experience for everybody. I love my
family and friends.''
The murder that put Mallett in the death chamber
occurred in March 1985 when Froemsdorf, a father of three young
daughters, pulled over Mallett for speeding along a roadway about 60
miles south of St. Louis. Mallett had several outstanding warrants,
including one for a Texas aggravated robbery offense, so he lied to
the trooper about his identity after hiding his wallet and
identification under the front seat of the car he was driving.
The ruse did not work, however, and Froemsdorf
handcuffed Mallett and attempted to take him into custody upon
finding the identification and learning about the outstanding
warrants. Mallett was able to free one of his hands from the
handcuffs and grabbed the trooper's gun, which he then used to shoot
Froemsdorf three times, authorities said.
Mallett was later apprehended with the handcuffs still dangling from
his right hand. The trooper's revolver was found in his car,
according to law enforcement.
A series of last-minute appeals all failed,
including a protest from the American Civil Liberties Union (news -
web sites) of Kansas and Western Missouri. The ACLU sought to
intervene, asking Missouri Gov. Bob Holden in a letter last week to
grant Mallett clemency because, the ACLU said, Mallett's death
sentence was "tainted by racism.''
The ACLU said that a similar case involving the
murder of a state trooper resulted in a life sentence for a white
man convicted of the crime.
About 75 demonstrators protested outside the prison against the
execution as it took place early Wednesday, said Kniest.
Mallett was the fifth inmate executed this year
in Missouri and the 51st since 1989, when the state reinstated the
Missouri Man Executed by Injection
New Hampshire Coalition Against
the Death Penalty
POTOSI, Mo. (AP) - A 42-year-old Missouri man was
executed by injection early Wednesday for killing a state trooper
during a traffic stop in 1985. Jerome Mallett was the fifth inmate
put to death this year in Missouri and the 51st since 1989, when the
state reinstated the death penalty.
Mallett had claimed he shot James Froemsdorf, a
nine-year veteran of the Missouri State Highway Patrol, in self-defense
after the patrolman allegedly hit him and pulled a gun on him on an
Interstate 55 roadside in Perry County.
But in a videotaped
statement made after his arrest, Mallett said he shot Froemsdorf,
35, during a struggle for the gun.
Mallett said mistakes by his attorney, Kenny
Hulshof, caused him to receive the death penalty. Hulshof, who went
on to become a prosecutor and is now a Republican congressman, did
not return calls for comment.
In his original appeals, Mallett's
attorneys argued their client, a black man, didn't receive a fair
trial because it was moved to Schuyler County, which has few black
residents, and thus led to an all-white jury. Mallett was black.
The appeal also claimed Circuit Judge E. Richard
Webber was biased because he sent a plaque in honor of the victim to
the highway patrol and a letter of condolence to the patrolman's
Based on those issues, a circuit judge vacated Mallett's
murder conviction and sentence. The state Supreme Court later
reinstated both and the U.S. Supreme Court (news - web sites) denied
an appeal of that decision, although three justices dissented.
United States Court of Appeals
for the Eighth Circuit
Jerome Mallett, Appellant
Michael Bowersox, Superintendent of the Potosi Correctional Center,
Appeal from the United States District Court for
the Eastern District of Missori
Submitted: September 21, 1998
Filed: November 16, 1998
Before BOWMAN, Chief Judge, JOHN R. GIBSON, and BEAM, Circuit
BOWMAN, Chief Judge.
Jerome Mallett, a prisoner in the custody of the
State of Missouri pursuant to a conviction of capital murder,
appeals from a final judgment of the District Court
1 denying a writ of habeas corpus
under 28 U.S.C. § 2254. See Mallett v. Delo ,
2 No. 90-437 C (2) (E.D. Mo. July
29, 1996). We affirm.
We begin with the facts of the crime for which
Mallett was tried by a jury, convicted, and sentenced to death, the
murder of Missouri state highway patrolman James M. Froemsdorf.
Shortly after 5:30 p.m., on March 2, 1985,
Trooper Froemsdorf pulled over a rust-colored 1973 Ford LTD driven
by Jerome Mallett. Mallett had been speeding on northbound
Interstate 55 in Perry County.
Before Trooper Froemsdorf approached the vehicle,
Mallett hid his wallet and identification under the front seat. When
Trooper Froemsdorf arrived at the side of the vehicle and requested
Mallett's driver's license, Mallett replied that he did not have his
license with him and falsely claimed to be Anthony Mallett, who is
actually petitioner Jerome Mallett's brother.
Trooper Froemsdorf handcuffed Mallett and
searched the vehicle. He found several items bearing the name
"Jerome Mallett," including a Texas driver's license.
Upon returning to his patrol car, Trooper
Froemsdorf contacted the highway patrol radio dispatcher, who
informed Trooper Froemsdorf that Mallett had four outstanding
warrants for probation violations and one outstanding warrant for
At 5:40 p.m., in what would prove to be his last
radio transmission, Trooper Froemsdorf informed the dispatcher that
Mallett was in custody and that he needed no assistance. At
approximately 6:00 p.m. a passing motorist noticed Trooper
Froemsdorf's apparently abandoned patrol car and, upon closer
investigation, discovered Trooper Froemsdorf's body.
The events occurring after Trooper Froemsdorf's
final transmission and before the discovery of his body were deduced
at trial, for the most part, from the injuries suffered by Trooper
Froemsdorf and forensic analysis of the interior of the patrol car.
Viewed in the light most favorable to the verdict,
the evidence showed that after Trooper Froemsdorf led Mallett to the
patrol car and placed him in the front passenger seat, he sat in the
driver's side seat and began to write a speeding ticket. Trooper
Froemsdorf's ticket book containing the partially written ticket
later was found on the front passenger seat of the patrol car.
Meanwhile, Mallett, aided by a childhood injury
to his right thumb allowing him to compress his hand so that it was
scarcely larger than the diameter of his wrist, managed to work his
right hand out of the handcuffs in which Trooper Froemsdorf had
placed him and attacked Trooper Froemsdorf with the back of his
still- manacled left hand. When Mallett subsequently was captured,
the handcuffs still dangled from his left hand.
Upon freeing his right hand, Mallett repeatedly
struck Trooper Froemsdorf on the left side of his face, leaving
large bruises, numerous abrasions and a serrated cut under his left
eye. The severity of the cut near Trooper Froemsdorf's eye suggested
the blow would have temporarily blinded him.
While Trooper Froemsdorf was unable to see,
Mallett drew the trooper's .357 magnum service revolver from the
holster on the trooper's right hip. The first shot fired by Mallett
grazed Trooper Froemsdorf's right epaulet and shattered the driver's
side window of the patrol car.
The slug from the second shot, intended for
Trooper Froemsdorf's lower left chest, was found imbedded in the
trooper's bullet proof vest. The impact of the slug, as evidenced by
the major abrasion left on Trooper Froemsdorf's chest, would have
slammed Trooper Froemsdorf against the driver's side door and
rendered him helpless for a short period of time.
In this helpless state, Trooper Froemsdorf
slumped backward against the driver's side door and away from the
passenger seat, the position in which his body ultimately was found.
At point-blank range, as indicated by powder burns later found on
Trooper Froemsdorf's body, Mallett fired two more shots into the
right side of Trooper Froemsdorf's neck, killing him.
We now proceed to the relevant procedural history
of the case.
Mallett was charged in Perry County with the
first-degree murder of Trooper Froemsdorf. Because of extensive
pretrial publicity, defense counsel moved for a change of venue from
Perry County to another county with a substantial number of black
residents, making a jury that included black persons more likely.
After defense counsel and the State were unable
to reach agreement on venue, each party submitted a list of
preferred counties. At the conclusion of argument on Mallett's
motion, the Perry County court entered an order transferring venue
to Schuyler County, a county in which there were no black residents.
Neither party had included Schuyler County in its list of preferred
A Schuyler County jury convicted Mallett of the
first degree murder of Trooper Froemsdorf. As shown by the verdict
form, the jury found three aggravating circumstances in assessing
Mallett's sentence: (1) the murder involved depravity of mind and as
a result it was outrageously or wantonly vile, horrible, or inhuman;
(2) the murder was committed against a peace officer while engaged
in the performance of his official duty; and (3) at the time of the
murder Mallett had escaped from the lawful custody of a police
Based on these aggravating circumstances, the
jury imposed the death sentence. On direct appeal, the Missouri
Supreme Court affirmed Mallet's conviction and death sentence.
See State v. Mallett , 732 S.W.2d 527 (Mo.), cert. denied
, 484 U.S. 933 (1987). Pursuant to Missouri Supreme Court Rule
Mallet moved for post-conviction relief.
Following an evidentiary hearing, the post-conviction court vacated
Mallet's conviction and death sentence. On appeal, the Missouri
Supreme Court reversed the post-conviction court's order and
reinstated Mallett's conviction and death sentence. See Mallett
v. State , 769 S.W.2d 77 (Mo. 1989), cert. denied , 494
U.S. 1009 (1990).
Mallett subsequently filed the present petition
for a writ of habeas corpus in the United States District Court for
the Eastern District of Missouri. The District Court denied habeas
relief, and Mallett appeals.
For reversal Mallett, a black man, argues the
District Court erred in concluding: (1) Mallett's equal protection,
due process, and Sixth Amendment rights were not violated when the
state trial court transferred his case to a county in which no
blacks resided; 4 (2) his
constitutional rights were not violated when the jury considered "depravity
of mind" as an aggravating circumstance in reaching its decision to
impose the death penalty; (3) he was not deprived of his
constitutional right to an impartial and disinterested trial judge;
(4) his constitutional right to effective assistance of counsel was
not violated either at trial or on direct appeal of his conviction
and sentence; (5) he was not denied a fundamentally fair trial by
the prosecutor's allegedly improper closing argument; and (6) the
evidence tending to establish the existence of deliberation, an
essential element of first degree murder, was sufficient for a
reasonable jury to convict. For the reasons discussed below, we
affirm the judgment of the District Court.
We review de novo the District Court's legal
conclusions and conclusions regarding mixed questions of law and
fact. Laws v. Armontrout , 863 F.2d 1377, 1381 (8th Cir.
1988), cert. denied , 490 U.S. 1040 (1989). The District
Court's findings of fact are reviewable under the clearly erroneous
standard. Id. at 1381-82.
First, we address the question whether the change
of venue from Perry County to Schuyler County was consistent with
Mallett's Fourteenth Amendment equal protection and due process
rights. We are unable to find any authority to support a conclusion
that Mallett's Fourteenth Amendment rights were violated by a change
of venue to a county without any, or at least a very small number of,
black residents from which to draw a jury venire. See Epps v.
State , 901 F.2d 1481, 1483 (8th Cir. 1990).
In Epps , a panel of this Court rejected a
habeas claim nearly identical to the argument Mallett now makes.
Epps, a black man, had been convicted of murder in an Iowa state
court. Id. at 1482. Because of extensive pretrial publicity,
defense counsel requested that venue be changed to another county
with a black population. Instead, the state trial court changed
venue to a county with no black residents,
5 in which Epps subsequently was
tried and convicted of felony murder. Id.
After unsuccessfully pursuing his state court
remedies, Epps filed a pro se habeas petition in the United States
District Court for the Southern District of Iowa. Id. at
1483. The district court denied habeas relief, and Epps appealed to
this Court. Then, as now, we were unable to find a constitutional
right requiring that the population of a county to which venue is
transferred include a black segment from which a jury venire may be
Nonetheless, Mallett argues the Supreme Court's
decision in Batson v. Kentucky , 476 U.S. 79 (1986),
prohibits, as a violation of the Equal Protection Clause of the
Fourteenth Amendment, the transfer of a black defendant's criminal
case to a county with no black residents. We reject such a reading
and hold that Batson is inapplicable to the present case.
In Batson , the petitioner claimed that
the state prosecutor challenged potential jurors solely on account
of their race and thereby violated the Fourteenth Amendment. The
Supreme Court held the Equal Protection Clause forbids a prosecutor
to use his peremptory challenges to exclude veniremen based solely
on their race. See id. at 89.
Here, in contrast, Mallett challenges a change of
venue occurring well before the process of choosing a jury had begun.
The trial court's decision to transfer venue on defense counsel's
motion has nothing to do with prosecutorial discrimination in
striking veniremen based on their race and was not addressed by the
Court in Batson .
Further, the Batson Court rested its
holding in part on the equal protection right of jurors to
avoid exclusion from a petit jury solely because of their race. "[B]y
denying a person participation in jury service on account of his
race, the State unconstitutionally discriminate[s] against the
excluded juror." Id. at 87.
In the present case, denial of participation on
Mallett's jury could not have been on account of racial
discrimination, for none of the potential jurors of Schuyler County
(or at least a very small number of them) were black, and no black
persons were members of the jury venire from which the trial jury
Finally, even were we to apply Batson ,
which we do not, Mallett would be required to make a showing of
purposeful discrimination in order to establish an equal protection
violation. See id. at 93 (citing Whitus v. Georgia ,
385 U.S. 545, 550 (1967)). On appeal of Mallett's Rule 27.26 motion,
the Missouri Supreme Court found "a complete void of evidence that [the
transferring court's] venue decision was animated by a
discriminatory purpose." Mallett v. State , 769 S.W.2d at 80.
We are required by 28 U.S.C. § 2254(d)
6 to presume the correctness of the
factual findings of the Missouri Supreme Court. See Sumner v.
Mata , 449 U.S. 539 (1981); Sloan v. Delo , 54 F.3d 1371,
1383-84 (8th Cir. 1995), cert. denied , 516 U.S. 1056 (1996).
Thus, we hold Mallett's Fourteenth Amendment equal protection rights
were not offended by the transfer of his case to Schuyler County.
We also reject Mallett's argument that the change
of venue procedure in this case was inherently lacking in due
process. 7 Generally, a
petitioner must show the actual existence of prejudice to prove he
was denied the due process guarantee of a fundamentally fair trial.
See Irvin v. Dowd , 366 U.S. 717, 723 (1961); Hill v.
Lockhart , 28 F.3d 832, 847 (8th Cir. 1994) (quoting Irvin
, 366 U.S. at 724 ), cert. denied , 513 U.S. 1102 (1995).
However, "at times a procedure employed by the
State involves such a probability that prejudice will result that it
is deemed inherently lacking in due process." Estes v. Texas
, 381 U.S. 532, 542-43 (1965); United States v. Johnson , 892
F.2d 707, 711 n.1 (8th Cir. 1989) (Lay, C.J., concurring) (quoting
Estes , 381 U.S. at 542 -43). Mallett claims the change of
venue in this case is the sort of procedure to which Estes
lends itself. 8
From this premise, Mallett apparently argues that
a high probability existed that the change of venue from Perry
County to Schuyler County was the result of a transferring court
motivated by racial prejudice or resulted in a jury prejudiced
against him. As discussed supra , the Missouri Supreme Court
found no evidence of racial motivation for the Perry County court's
decision to transfer venue to Schuyler County, and we are bound by a
presumption that those findings are valid.
The presumption of validity likewise extends to
the Missouri Supreme Court's determination, after extensive review
of the voir dire record, that "direct evidence [existed] that the
jurors were not motivated by racism." State v. Mallett , 732
S.W.2d at 539. Based on these facts, we are unable to conclude that
Mallett has shown the identifiable prejudice generally required.
Further, we decline Mallett's invitation under
Estes to infer prejudice solely from the circumstances that the
transferring court transferred venue to a county with no black
residents (or a very small number of black residents) and the jury
ultimately was drawn from that county.
To hold that prejudice may be inferred simply
because the jury included no jurors of Mallett's race--the
predictable consequence of drawing a jury from a county without a
substantial black population-- would amount to a holding that
Mallett is entitled to have members of his race on the jury. Cf.
Taylor v. Louisiana , 419 U.S. 522, 538 (1975) (holding
defendants are not entitled to a jury of a particular racial
composition). Therefore, we hold the change of venue procedure
employed here did not deprive Mallett of the fundamentally fair
trial he was due.
Next we consider the argument that the change of
venue deprived Mallett of his Sixth Amendment right to a jury
selected from a fair cross-section of the community. See id.
at 530 (holding the Sixth Amendment, as applied against the states
by the Fourteenth Amendment, confers on state criminal defendants
the right to a jury venire drawn from a fair cross-section of the
To establish a violation of this right, Mallett
must show that blacks constitute a distinctive group in the
community, the number of blacks in jury pools is unfairly and
unreasonably small as compared to the number of blacks in the
community, and this disproportionate representation is due to the
systematic exclusion of blacks from the jury-selection process.
See Wharton- el v. Nix , 38 F.3d 372, 376 (8th Cir. 1994) (quoting
Duren v. Missouri , 439 U.S. 357, 364 (1979)), cert.
denied , 513 U.S. 1162 (1995).
Because Schuyler County contained no pool of
black residents from which a jury could have been drawn, Mallett
cannot establish even a single element necessary for his claim that
the dearth of black jurors on his petit jury constituted a violation
of his right to a jury drawn from a fair cross-section of the
No authority exists for the proposition that the
term "community," as used in the context of this Sixth Amendment
claim, means any place other than Schuyler County, the county from
which Mallett's venire ultimately was drawn. We therefore conclude
the change of venue from Perry County to Schuyler County was
consistent with the Sixth Amendment.
We turn now to the question whether Mallett's
constitutional rights were violated when the jury considered "depravity
of mind" as an aggravating circumstance in imposing the death
penalty. The trial court instructed the jury that it could find an
aggravating circumstance if "the murder of James Froemsdorf involved
depravity of mind, and that as a result thereof, it was outrageously
or wantonly vile, horrible or . . . inhuman." Trial Tr. at 2772-73.
According to Mallett, the trial court's depravity-of-mind
instruction is unconstitutionally vague in violation of the Eighth
Amendment as incorporated against the states by the Fourteenth
Amendment. We disagree.
The Eighth Amendment requires that state law
define with reasonable specificity the circumstances in which the
death penalty is to be imposed. A state must articulate guidelines
to provide a jury principled means to distinguish a case in which
the death penalty is appropriate from those cases in which it is not.
Maynard v. Cartwright , 486 U.S. 356, 362-63 (1988);
Godfrey v. Georgia , 446 U.S. 420, 427-28 (1980); Battle v.
Delo , 19 F.3d 1547, 1562 (8th Cir. 1994), cert. denied ,
517 U.S. 1235 (1996).
A limiting construction of the depravity-of-mind
aggravating circumstance requiring a finding of "some kind of
torture or serious physical abuse" is sufficient to channel and
limit the jury's discretion in imposing the death sentence.
Maynard , 486 U.S. at 364 -65; Battle , 19 F.3d at 1562;
State v. Griffin , 756 S.W.2d 475, 490 (Mo. 1988) (holding
murder involving "serious physical abuse" or "callous disregard for
human life" justifies finding of depravity of mind), cert. denied
, 490 U.S. 1113 (1989). A state appellate court may provide such
a limiting construction. Walton v. Arizona , 497 U.S. 639,
653-54 (1990); Sloan , 54 F.3d at 1384-85 ("A state appellate
court may cure an unconstitutionally vague instruction . . . by
establishing and then later applying a valid limiting construction.").
In the present case, the Missouri Supreme Court,
on direct appeal, found: The evidence that defendant repeatedly beat
Trooper Froemsdorf across the face with his still handcuffed left
hand, that defendant temporarily incapacitated the trooper by firing
a shot into the trooper's bulletproof vest, and that defendant took
advantage of this temporary incapacity by pumping not one, but two,
.357 magnum slugs through the helpless trooper's neck, provided
justification for the jury's finding that the murder was
outrageously or wantonly vile, horrible, or inhuman in that it
involved depravity of mind.
State v. Mallett , 732 S.W.2d at 542.
Again, on appeal of Mallett's Rule 27.26 post-conviction claim, the
Missouri Supreme Court revisited the circumstances of the murder and,
addressing Mallett's argument that the depravity-of-mind aggravating
circumstance was unconstitutionally vague, found "[t]he evidence
indicated the victim had been subjected to serious physical abuse
and that movant's actions were in callous disregard for the sanctity
of human life." Mallett v. State , 769 S.W.2d at 83 (citing
Griffin , 756 S.W.2d at 489-90, in which Missouri Supreme
Court followed Godfrey and Maynard in explicitly
narrowing depravity of mind aggravating circumstance). These
findings amount to a limiting construction of the depravity-of-mind
aggravating circumstance. See Smith v. Armontrout , 888 F.2d
530, 538 (8th Cir. 1989) (citing Maynard , 486 U.S. at 365 ).
In Mercer v. Armontrout , 864 F.2d 1429,
1435 (8th Cir. 1988), a case in which the Missouri Supreme Court
made similar findings of fact effecting a limiting construction, a
panel of this Court held the depravity-of-mind instruction was not
Since deciding Mercer , this Court
repeatedly has found the Missouri depravity-of-mind instruction,
when narrowly construed, consistent with the Eighth Amendment.
See, e.g. , LaRette v. Delo , 44 F.3d 681, 686-87 (8th
Cir.), cert. denied , 516 U.S. 894 (1995); Murray v. Delo
, 34 F.3d 1367, 1382-83 (8th Cir. 1994), cert. denied ,
515 U.S. 1136 (1995); Battle , 19 F.3d at 1562; Smith
, 888 F.2d at 537-38. Cf. Newlon v. Armontrout , 885 F.2d
1328, 1333-35 (8th Cir. 1989) (finding depravity-of-mind instruction
was not capable of objective determination by the jury and Missouri
Supreme Court did not provide limiting construction sufficient to
satisfy Eighth Amendment), cert. denied , 497 U.S. 1038
(1990). Once again we conclude the depravity-of-mind aggravating
circumstance, as here limited by the Missouri Supreme Court, does
not violate the Eighth Amendment.
Even were we to determine that the depravity-of-mind
instruction was unconstitutionally vague, the two remaining
aggravating circumstances found by the jury would suffice to sustain
Mallett's death sentence.
In addition to concluding Mallett's actions
involved depravity of mind, the jury found that the murder was
committed against a peace officer while engaged in the performance
of his duties and that Mallett had escaped the lawful custody of a
peace officer at the time of the murder. "[U]nder Missouri law a
death sentence need not be vacated if only one of several
aggravating circumstances is later found to be deficient." Harper
v. Grammer , 895 F.2d 473, 480 (8th Cir. 1990) (citing Mercer
, 864 F.2d at 1435-36 n.5).
Mallett argues the jury's consideration of an
invalid aggravating circumstance cannot be cured by the existence of
additional aggravating circumstances. This is so, he claims, because
Missouri is a "weighing" state--a state in which a jury must weigh
the aggravating circumstances against the mitigating circumstances
in determining whether to impose the death sentence.
Upon invalidation of one of several aggravating
circumstances, Mallett's argument goes, the remaining aggravating
circumstances must be reweighed against the mitigating circumstances.
This simply is incorrect. "[T]he sentencing process in Missouri does
not involve a simple weighing of aggravating and mitigating
circumstances. Once a single aggravating circumstance is found in
Missouri, the factfinder is free to consider all the evidence to
determine whether the death penalty is appropriate." Sloan ,
54 F.3d at 1385 (citations omitted); see also Feltrop , 46
F.3d at 771 ("Missouri is not a weighing State."); State v.
Mercer , 618 S.W.2d 1, 10 n.5 (Mo.), cert. denied , 454
U.S. 933 (1981).
Thus, in the case at bar, even if the depravity-of-mind
instruction were unconstitutionally vague (we already have
determined it is not), the two remaining aggravating circumstances
found by the jury would be sufficient to sustain Mallett's death
sentence. For all of these reasons, the depravity-of-mind
aggravating circumstance does not support a reversal of Mallett's
We consider next Mallett's argument that he was
denied his Fourteenth Amendment due process right to an impartial
and disinterested judge. Prior to being assigned to Mallett's case,
the state trial court judge sent two plaques to the state highway
patrol in memory of Trooper Froemsdorf and another patrolman killed
in the line of duty. One plaque was forwarded to the family of
Based on these facts, Mallett moved for recusal
of the trial court judge before trial. His motion was denied.
Mallett raised this issue again in his motion for new trial, but
failed to address the issue on direct appeal. He attempted to
resurrect the argument in his Rule 27.26 motion, but the motion
court determined the issue was not cognizable because it was not
raised on direct appeal. See O'Neal v. State , 486 S.W.2d
206, 207 (Mo. 1972) ("A proceeding under Rule 27.26 is not a
substitute for appeal.").
The Missouri Supreme Court affirmed the motion
court's finding that the claim was abandoned. See Mallett v.
State , 769 S.W.2d at 83. Because this issue is procedurally
defaulted under Missouri law, and because Mallett makes no showing
of cause and prejudice to overcome the resulting procedural bar
against federal collateral review of the issue, we necessarily find
that federal habeas review is procedurally barred. See Harris v.
Reed , 489 U.S. 255 (1989); LaRette , 44 F.3d at 687.
We have considered Mallett's remaining claims
regarding ineffective assistance of trial and appellate counsel, the
State's allegedly improper closing argument, and the sufficiency of
the evidence regarding the element of deliberation, and conclude
that none of them has merit. The judgment of the District Court is
affirmed. A true copy.
The Honorable Edward L. Filippine, United
States District Judge for the Eastern District of Missouri.
While Mallett's habeas petition was pending
with the District Court, Michael Bowersox replaced Paul Delo as the
Superintendent of the Potosi Correctional Center, where Mallett was
incarcerated. Pursuant to Federal Rule of Civil Procedure 25(d), the
District Court substituted Bowersox for Delo as the named respondent,
see Mallett v. Delo , No. 90-437 C (2) at 1 n.1, and the case
comes to us with the above caption.
Missouri Supreme Court Rule 27.26 was
repealed effective January 1, 1988, but was Mallett's appropriate
recourse when he sought post-conviction relief.
On direct appeal, the Missouri Supreme Court
noted that according to 1980 census statistics Schuyler County had
three black residents out of a total population of 4967. See
State v. Mallett , 732 S.W.2d 527, 540 (Mo. 1987). Whether any
black residents remained in Schuyler County in 1986, when Mallett's
jury venire was drawn, is not indicated in the record.
A later hearing on Epps' application for
post- conviction relief revealed the county to which the trial court
transferred venue had 11,114 residents, three of whom were black.
See Epps , 901 F.2d at 1482 n.2.
Section 2254(d) provides that in federal
habeas corpus proceedings brought by a state prisoner, written
factual findings by a state court of competent jurisdiction "shall
be presumed correct," unless one of several enumerated conditions is
met. 28 U.S.C. § 2254(d) (1994). None of the specified conditions
Mallett's due process argument consists of a
single sentence flatly asserting
"[t]he circumstances underlying the change of
venue also violate due process in that
the procedure employed by the state involves such
a probability that prejudice will result that it's deemed inherently
lacking in due process." Brief for Appellant at 15-16 (citation
omitted). Although we doubt a single sentence constitutes a
sufficient exposition of the issue, see Sidebottom v. Delo ,
46 F.3d 744, 750 (8th Cir.), cert. denied , 516 U.S. 849
(1995), we exercise our discretion to address the merits of
Mallett's due process claim as we understand it.
We have noted previously that the Estes
principle is rarely applicable and is reserved for extreme
situations. See Snell v. Lockhart , 14 F.3d 1289, 1293 (8th
Cir.), cert. denied , 513 U.S. 960 (1994) (citations omitted).
Even in cases involving claims of prejudicial pretrial publicity,
where Estes would appear to be most germane, we have been
reluctant to conclude due process has been violated without
demonstrated prejudice. See, e.g. , Snell , 14 F.3d at
1294 (refusing to presume prejudice and requiring petitioner to show
actual prejudice despite very thorough media coverage); Perry v.
Lockhart , 871 F.2d 1384, 1390 (8th Cir.) ("Pretrial publicity
can be the grounds for reversal only if it has actually prejudiced
the jury."), cert. denied , 493 U.S. 959 (1989).
Trooper James M. Froemsdorf
Trooper James M.
Froemsdorf, 35, was shot and killed with his own gun on
March 2, 1985, on I-55, near Brewer, Missouri, in Perry
County. Trooper Froemsdorf had stopped Jerome Mallett
for speeding and a radio check revealed Mallett to be
wanted for armed robbery in Texas. Trooper Froemsdorf
had handcuffed Mallett and was preparing to take him to
the Perry County jail when Mallett was able to free one
of his hands and attack the trooper. During the ensuing
struggle, Mallett was able to get Trooper Froemsdorf's
gun and shot and killed him in the patrol car.
A massive manhunt
involving several law enforcement agencies resulted in
the capture of Mallett on March 5. Mallett was convicted
of murder and sentenced to be executed. His execution
occurred on July 11, 2001. Mallett's last words included
an apology to the Froemsdorf family.
Froemsdorf was the 12th member of the Patrol to lose his
life in the line of duty. Trooper Froemsdorf was
survived by his wife and three daughters.
As part of the
Patrol's 75th Anniversary Celebration, employees of the
Patrol have written in-depth articles about each of the
officers that have been killed in the line of duty.
These stories go more into the officer's life, who they
were and their families, then just the circumstances of