The evidence supports defendant's conviction for
the murder of Karen Keeten, a 22-year-old white
female, in the early morning hours of August 31,
that defendant, a 34-year-old white male, was drinking with friends
at the Blue Seven Lounge in Grandview, Missouri, the evening before.
Karen was working there as a waitress.
During the evening,
defendant made the comment that he would like to take her to bed.
Steven Gardner, a friend of defendant who was acquainted with Karen,
went up to the bar to talk to her. He returned a short time later
and said he and Karen were going to breakfast and would go to
defendant's house afterward.
with David Gee, another friend, and went to defendant's home in
Belton, Missouri, arriving there around 12:30 a. m. John Campbell
was at the house babysitting with defendant's ten-year-old daughter.
A short time later Gardner and Karen Keeton arrived.
After visiting for
some time defendant picked up a sawed-off double-barreled shotgun,
opened it to show the shells, walked over to Karen, tapped her on
the head with the gun, and told her to "get her ass upstairs."
When she hesitated
he grabbed her and pushed her to the stairway. She yelled for
Gardner to help. He responded, "Happy Birthday, Tiny," then turned
to the others and said, "Seconds." Karen's dress was tossed
downstairs with defendant telling Gardner to "put these clothes
where they go, you know where they go." Gardner put the clothes in a
closet and pocketed the money from her purse.
came downstairs; he was naked and had an erection. Gardner went
upstairs. Defendant drank beer for awhile, showered and returned to
the table to dry himself at which time he remarked what "a good
piece of ass" she was and that he was going to go back and "fuck her
in the butt."
later, Gardner yelled for David Gee to come upstairs. Gee, followed
by defendant and John Campbell, complied. Upstairs, defendant told
Karen, who was lying naked on the bed, to undress Gee and "start
sucking David Gee's dick." She performed as directed. After Gee
answered, "Pretty good", to defendant's question about her
performance, defendant said, "You leaky cunt, you'd better do it
better." When asked how she was doing now, Gee answered, "Better now."
Defendant, Gardner and Campbell returned downstairs.
At this time,
Karen stopped what she was doing, and Gee put his clothes on. Karen
asked what was going to happen to her; Gee attempted to reassure her.
When Gee returned downstairs, defendant told Campbell to get
upstairs so they would all be in it together. Campbell proceeded
upstairs and found Karen unclothed. She cried, and Campbell talked
with her, trying to console her. He too returned downstairs.
upstairs again as Gardner was leaving. He asked Gardner what he
wanted done with Karen and Gardner replied, "Kill the bitch."
Defendant said, "Okay, brother." Gardner asked if he would need any
help; defendant said no, he would get rid of the body where it would
not be found. Gardner and Gee left, defendant went upstairs, and
Campbell went to sleep downstairs.
suddenly awakened by defendant calling his name from upstairs. He
responded and found defendant straddling Karen's body with his hands
on her throat. Defendant screamed at Campbell to take her pulse.
Campbell grabbed the arm of Karen's seemingly lifeless body and
found a faint pulse. At the time he told defendant this, he could
smell human waste, which was all over the bed. Defendant, "hollered",
struck the left side of Karen's head, and said, "Die you bitch ...
This is a leaky cunt. Die." He continued strangling her, and again
screamed at Campbell to take her pulse. Campbell found no pulse.
reported this, defendant got off the bed, grabbed Karen's legs, and
pulled her off the bed. Defendant took the sheets and blanket to the
washing machine and told Campbell to wipe the waste off the floor.
Defendant came back and told Campbell to get his truck and put the
tailgate down so he could put Karen in it. After Campbell complied,
defendant brought the body down and put it in the truck. Campbell
and defendant climbed in the truck and Campbell started driving at
had Campbell stop. Defendant got out and dumped the body over a
fence into a field. When he returned he told Campbell, "Now, if I'd
killed that leaky cunt 17-year-old like I did her ... I wouldn't
have been on any rape charges and things I'm on right now." At that
time, defendant had a rape charge pending against him filed by a 17-year-old
girl. Defendant and Campbell returned to defendant's house where
defendant gave Campbell the shotgun to hide, and burned Karen's
Three to four
weeks later Campbell and his attorney looked for and found the badly
decomposed body of Karen Keeton. They reported this to the
authorities. The body was identified by means of her teeth.
844 F.2d 582
George Mercer, Appellant,
Bill Armontrout, Warden, Missouri State Penitentiary,
Circuits, 8th Cir.
June 13, 1988
Before LAY, Chief
Judge, McMILLIAN and ARNOLD, Circuit Judges.
LAY, Chief Judge.
George Mercer was found guilty of
capital murder under Mo.Rev.Stat. Sec. 565.001
and sentenced to death after a five-day jury trial.
On appeal the judgment of conviction was affirmed.
State v. Mercer, 618 S.W.2d 1 (Mo.), cert. denied,
454 U.S. 933 , 102 S.Ct. 432, 70 L.Ed.2d 240
Following his conviction, Mercer
filed a petition for a writ of habeas corpus in the
federal district court. After the matter was
remanded to the state for further proceedings,
Mercer renewed his petition in the federal district
The district court ultimately denied Mercer's
petition for habeas relief. 643 F.Supp. 1021 (1986).
Mercer now appeals to this court and seeks habeas
relief on three grounds: (1) insufficiency of the
evidence showing aggravating circumstances under
Missouri law; (2) improper selection of the jury;
and (3) admission into evidence of a prior
prosecution for rape. We affirm the denial of the
issuance of a writ of habeas corpus.
The evidence established that
George "Tiny" Mercer was drinking with several
friends at the Blue Seven Lounge in Grandview,
Missouri. Karen Keeton, the decedent, was a waitress
at the Blue Seven Lounge and Mercer mentioned to his
friends that he'd like to have sexual intercourse
with Keeton that evening.
One of Mercer's friends, Stephen
Gardner, knew Keeton and persuaded her to leave the
lounge with him. Later that night, Gardner brought
Keeton to Mercer's home. After being raped by Mercer
and Gardner, Keeton was forced at gunpoint to
perform fellatio on David Gee. Thereafter, Mercer
twice asked Steve Gardner what to do with her, and
Gardner instructed Mercer both times to kill her.
Mercer then straddled Keeton's body and choked her
to death with his hands.
After strangling Keeton, Mercer
put her body in the back of John Campbell's pickup
truck and ordered Campbell to drive. At some point
Mercer ordered the truck stopped, dragged Keeton's
body out of the truck, and hid it off to the side of
the road. As he returned from discarding Keeton's
body, Mercer remarked to Campbell that if he had
killed "that leaky cunt 17-year-old like I did her *
* * I wouldn't've been on any rape charges and
things I'm on right now."
At the time Mercer was found to
have raped and murdered Keeton, Mercer was also
being prosecuted for the rape of Debbie Middleton.
I. Agency as an Aggravating
One of the two aggravating
factors the jury relied upon in sentencing Mercer to
death was "agency," i.e., that Mercer was acting at
the direction of Gardner. Mo.Rev.Stat. Sec.
Agency is considered an aggravating factor under
Missouri law because such a killing is not done out
of passion or rage. A murder committed as another's
agent or employee is often motivated solely by money
or loyalty. See, State v. Mercer, 618 S.W.2d at 14 (Bardgett,
C.J., dissenting) and id. at 18 (Seiler, J.,
dissenting). Mercer argues that agency was not
established. Mercer also argues that because agency
was not established, one of the two aggravating
factors used is now invalid and, therefore, his
death sentence must be overturned.
The jury had before it evidence
that Mercer turned twice to Gardner and asked him
what to do with Keeton. After Gardner instructed
Mercer to murder Keeton, Mercer strangled her. The
jury also had before it evidence that Gardner, Gee,
and Mercer worked together at Industrial Roofing
where Gardner was a foreman. After considering this
evidence, the jury found Mercer acted as Gardner's
The Missouri Supreme Court
affirmed the jury's findings. Id. at 11. This court
must presume that the state court's findings are
correct. Sumner v. Mata, 455 U.S. 591, 597-98, 102
S.Ct. 1303, 1306-07, 71 L.Ed.2d 480 (1982); 28 U.S.C.
Sec . 2254(d) (1982). Furthermore, Mercer has
not introduced convincing evidence to establish that
the jury's factual determination was clearly
erroneous. Rowe v. Lockhart, 736 F.2d 457, 460 (8th
Mercer now asserts, however, that
the brief conversation he had with Gardner is
insufficient to establish an agency relationship as
a matter of law. Mercer cites no authority for this
proposition. Aggravating factors are not
constitutionally invalid so long as there is a
factual basis for them, and so long as the
aggravating factors channel the jury's discretion.
Zant v. Stephens, 462 U.S. 862, 876-77, 103 S.Ct.
2733, 2742, 77 L.Ed.2d 235 (1983). We agree with the
district court that the jury permissibly could have
While we do not disturb the
jury's finding of agency as an aggravating factor,
Mo.Rev.Stat. Sec. 565.012.2(6), Mercer's argument on
the issue of agency also fails because there remains
an unchallenged aggravating factor. As a matter of
state law, where at least two aggravating
circumstances are found, the failure of one does not
mandate reversal or resentencing.
Under Missouri law, when a "jury
finds two or more aggravating circumstances, 'the
failure of one circumstance does not taint the
proceedings so as to invalidate the other
aggravating circumstance[s] found and the sentence
of death thereon.' " State v. Malone, 694 S.W.2d
723, 728 (Mo.1985) (quoting State v. LaRette, 648
S.W.2d 96, 102 (Mo.), cert. denied,
464 U.S. 908 , 104 S.Ct. 262, 78 L.Ed.2d 246
(1983)), cert. denied,
476 U.S. 1165 , 106 S.Ct. 2292, 90 L.Ed.2d 733
(1986); see also State v. Gilmore, 697 S.W.2d
172, 176 (Mo.1985) ("Where two or more statutory
aggravating circumstances are found by the jury,
failure of one circumstance does not invalidate the
other."), cert. denied,
476 U.S. 1178 , 106 S.Ct. 2906, 90 L.Ed.2d 992
(1986). In view of the ample state law
authority cited above, the Missouri Supreme Court
was justified in holding that the failure of one of
two aggravating circumstances does not require
reversal. State v. Mercer, 618 S.W.2d at 10 n. 5.
Moreover, in Barclay v. Florida,
463 U.S. 939, 958, 103 S.Ct. 3418, 3429, 77 L.Ed.2d
1134 (1983), the Supreme Court held that, as a
matter of constitutional law, improper consideration
of an aggravating factor may constitute only
harmless error. The Court wrote: "There is no reason
why the [state supreme court] cannot examine the
balance struck by the trial judge and decide that
the elimination of improperly considered aggravating
circumstances could not possibly affect the
Likewise, in Zant v. Stephens,
462 U.S. at 891, 103 S.Ct. at 2750, the Court upheld
a death sentence even though one of the three
aggravating factors was held invalid. The Court
observed that imposition of capital punishment is
constitutional so long as the aggravating
circumstances relied upon genuinely narrow the class
eligible for the death penalty. Id. at 877, 103 S.Ct.
Despite the invalid aggravating
circumstances, the jury made an "individualized
determination on the basis of the character of the
individual and the circumstances of the crime." Id.
at 879, 103 S.Ct. at 2744. In addition, the state
supreme court reviewed the death sentence and held
that it was neither arbitrary, excessive, nor
disproportionate. Id. at 879-80, 103 S.Ct. at
In the instant case, the Missouri
Supreme Court has reviewed the sentence and found
that application of the death penalty "was not
imposed under the influence of passion, prejudice or
any other arbitrary factor." State v. Mercer, 618
S.W.2d at 10. Furthermore, the use of agency as an
aggravating factor narrows the class eligible for
the death penalty. We agree, therefore, with the
district court's decision to leave the finding of
II. Jury Selection
A prospective juror who
categorically believes that death is never an
appropriate penalty can be disqualified for cause
because such a juror will not follow the trial
court's instructions. Wainwright v. Witt,
469 U.S. 412 , 433, 105 S.Ct. 844, 856, 83
L.Ed.2d 841 (1985).
While recognizing that jurors who
state unequivocally that they are opposed to the
death penalty can be removed for cause, Mercer
argues that jurors who, due to their religious
beliefs, merely equivocate on the issue of their
ability to follow the court's instructions cannot be
discharged. Witherspoon v. Illinois, 391 U.S. 510,
522-23, 88 S.Ct. 1770, 1776-77, 20 L.Ed.2d 776
Mercer argues that venire member
Bumgarner, who was disqualified for cause, never
stated that he would ignore the court's instructions,
but rather that he was fundamentally opposed to the
The Supreme Court noted in
Witherspoon that a trial court is permitted to
strike all jurors who indicate:
(1) that they would
automatically vote against the imposition of capital
punishment without regard to any evidence that might
be developed at the trial of the case before them,
or (2) that their attitude toward the death penalty
would prevent them from making an impartial decision
as to the defendant's guilt. Nor does the decision
in this case affect the validity of any sentence
other than one of death. Nor, finally, does today's
holding render invalid the conviction, as opposed to
the sentence, in this or any other case.
Witherspoon v. Illinois, 391 U.S.
at 522-23 n. 21, 88 S.Ct. at 1777 n. 21 (emphasis in
The Supreme Court, however, held
later that less extreme jurors could also be removed
for cause. Wainwright v. Witt, 469 U.S. at 424-26,
105 S.Ct. at 852-53. In Witt, Johnny Paul Witt was
sentenced to death for murdering an eleven-year-old
boy. The conviction and death sentence were
overturned by the court of appeals because potential
juror Colby was removed for cause. Colby had engaged
in the following colloquy with the prosecutor:
"[Q. Prosecutor:] Now, let me ask
you a question, ma'am. Do you have any religious
beliefs or personal beliefs against the death
"[A. Colby:] I am afraid
personally but not--
"[Q]: Speak up, please.
"[A]: I am afraid of being a
little personal, but definitely not religious.
"[Q]: Now, would that interfere
with you sitting as a juror in this case?
"[A]: I am afraid it would.
"[Q]: You are afraid it would?
"[A]: Yes, Sir.
"[Q]: Would it interfere with
judging the guilt or innocence of the Defendant in
"[A]: I think so.
"[Q]: You think it would.
"[A]: I think it would.
"[Q]: Your honor, I would move
for cause at this point.
"THE COURT: All right. Step down."
469 U.S. at 415-16, 105 S.Ct. at
In deciding Witt, the Court
reaffirmed its holding in Witherspoon and stated
that, as a practical matter, prospective jurors
simply cannot be questioned adequately to establish
unmistakably whether they could vote for the death
penalty. Witt, 469 U.S. at 425, 105 S.Ct. at 852.
Nonetheless, the trial court, who is able to observe
the visage and demeanor of the prospective juror may
conclude that the juror will be unable "to
faithfully and impartially apply the law." Id. at
426, 105 S.Ct. at 853.
Thus, a trial court that
dismisses a prospective juror because that juror
will not follow instructions on the imposition of
the death penalty may not be reversed by an
appellate court absent clear and convincing evidence
that the trial court erred. Id. at 435, 105 S.Ct. at
857; 28 U.S.C. Sec . 2254.
Mercer alleges that the district
court committed reversible error by failing to
inquire whether juror Bumgarner could follow the law
despite his personal views. The Missouri Supreme
Court, however, found that Bumgarner's response was
unequivocal; he could not impose the death penalty
or at least would be substantially impaired in doing
so. State v. Mercer, 618 S.W.2d at 7. The district
court found no basis for overturning that factual
finding. We agree with the district court.
III. Introduction of Prior
After Mercer strangled Keeton to
death, he put her body in the back of John
Campbell's truck. Campbell testified that Mercer
thereafter stated: "I wouldn't be in the trouble I'm
in today if I'd killed that other bitch on the
rape." After introducing this statement, the State
sought to corroborate Campbell's testimony by
introducing evidence that Mercer was indeed being
prosecuted for raping Debbie Middleton.
Mercer had allegedly raped
Middleton a month prior to raping and strangling
Keeton. The State desired to introduce evidence of
the prosecution for Middleton's rape because that
prosecution would both corroborate Campbell's
testimony and establish Mercer's motive for
murdering Keeton, i.e., a desire to avoid being
prosecuted for Keeton's murder.
The State was prepared to have
Middleton testify but Mercer's attorneys, wishing to
avoid the prejudicial effect of having Middleton
testify, agreed to a stipulation that Mercer was
currently being prosecuted for raping Middleton.
Mercer now claims that he was forced into making
this stipulation, and that admitting proof of the
prior prosecution violated his right to due process
and was fundamentally unfair. We disagree.
Both the Federal Rules of
Evidence and the Missouri Rules of Evidence allow
evidence of prior convictions but generally do not
allow into evidence prior arrests. See, e.g., State
v. Skinner, 734 S.W.2d 877, 885 (Mo.Ct.App.1987);
State v. Hansel 629 S.W.2d 509, 510 (Mo.Ct.App.1981);
Fed.Rs.Evid. 404(b), 609.
The trial court admitted the
prior prosecution into evidence on the theory that
it was relevant to Mercer's motive; Mercer had to
kill Keeton in order to silence her so that she
would not testify against him as Middleton had done.
Furthermore, Campbell had testified that Mercer said
he wished he had killed "that leaky cunt seventeen-year-old"
as he had Keeton. Introducing this stipulation
corroborated Campbell's testimony and explained the
importance of Mercer's statement.
Whether a prior prosecution for
rape should be admissible evidence is a question of
state law. Our review, as the district court noted,
Mercer, 643 F.Supp. at 1026-27, is limited to
determining whether there has been a violation of
Mercer's constitutional rights. Manning-El v. Wyrick,
738 F.2d 321, 323 (8th Cir.), cert. denied,
469 U.S. 919 , 105 S.Ct. 298, 83 L.Ed.2d 233
In order for the admission of
evidence to warrant habeas relief, the trial court's
error must have been so egregious that it denied the
defendant his right to due process. To determine
whether the defendant has been denied due process,
the court must look at the totality of the
circumstances, Ellis v. Black, 732 F.2d 650, 658
(8th Cir.1984) and decide whether the error was so "
'gross' * * * 'conspicuously prejudicial' * * * or
otherwise of such magnitude that it fatally infected
the trial and failed to afford petitioner the
fundamental fairness which is the essence of due
process." Maggitt v. Wyrick, 533 F.2d 383, 385 (8th
Cir.) (citations omitted), cert. denied,
429 U.S. 898 , 97 S.Ct. 264, 50 L.Ed.2d 183
Prior arrests are generally not
allowed into evidence because of their extreme
prejudicial value. State v. Mallett, 732 S.W.2d 527,
534-35 (Mo.), cert. denied, --- U.S. ----, 108 S.Ct.
309, 98 L.Ed.2d 267 (1987); C. McCormick, McCormick
on Evidence 557-58 (Lawyer's ed. 1984). Exceptions
have been generally recognized, however, where the
operative facts demonstrate a motive, plan, scheme,
lack of mistake, or identity (as in the case of a
signature crime). Hardy v. United States, 199 F.2d
704, 707 (8th Cir.1952); State v. Mallett, 732 S.W.2d
at 534-35; State v. Shaw, 636 S.W.2d 667, 671-72
(Mo.), cert. denied,
459 U.S. 928 , 103 S.Ct. 239, 74 L.Ed.2d 188
(1982); McCormick on Evidence 558-64. In this
case the trial court balanced the prejudicial effect
of the prosecution against the relevance of the
prosecution on Mercer's motive and Campbell's
statement. The trial court found that the
prejudicial effect of that evidence did not outweigh
its probative value.
We find no error that could be
said to have fatally infected the trial which
resulted in the denial of a fair trial.
The district court's order
denying habeas relief is hereby affirmed.