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George C. MERCER






A.K.A.: "Tiny"
Classification: Murderer
Characteristics: Rape
Number of victims: 1
Date of murder: August 31, 1978
Date of birth: August 31, 1944
Victim profile: Karen Keeton, 22 (tavern waitress)
Method of murder: Strangulation
Location: Cass County, Missouri, USA
Status: Executed by lethal injection in Missouri on January 6, 1989

George C. "Tiny" Mercer (August 31, 1944 January 6, 1989) was convicted of the rape and murder of 22 year old Karen Keeton in Belton, Missouri on August 31, 1978. At the time of the murder, Mercer had a charge pending against him of raping a 17 year old girl.

He was executed at the age of 44 by the state of Missouri by lethal injection. He became the first person to be executed in Missouri since 1976 when the death penalty was reinstated.


Man Executed in Missouri for Killing Waitress

The New York Times

January 6, 1989

A convicted killer was put to death by injection early today for the murder of a tavern waitress, becoming the first Missouri inmate executed since 1965.

The man, George Mercer, 44 years old, was injected at 12:03 A.M., lost consciousness three minutes later and was pronounced dead at 12:09 A.M., the authorities said. About a dozen demonstrators carrying candles gathered outside the Missouri State Penitentiary to protest the execution.

On Thursday the United States Supreme Court refused by a vote of 7 to 2 to stay the execution, and Gov. John Ashcroft did not block it. Mr. Mercer was the 105th person put to death in the United States since the Supreme Court allowed states to restore the death penalty in 1976. Shocked by Denial of Stay

Mr. Mercer was convicted of the 1978 rape and murder of Karen Keeton, a 22-year-old tavern waitress at his home in Belton, near Kansas City. He had been on Missouri's death row longer than any other inmate.

A prison spokesman said that when the warden, Bill Armontrout, told Mr. Mercer the stay had been denied, ''Bill described it as sort of a look of shock. Mercer did make the statement that it was in the hands of the maker.''

Since October, Missouri has scheduled four executions that were halted by the courts, including one for Mr. Mercer.

According to evidence at his trial, friends brought Ms. Keeton to Mr. Mercer as a ''birthday present.'' His 11-year-old daughter was at home at the time of the assault in which Mr. Mercer forced the woman to engage in sex with him at gunpoint before killing her. Found Religion in Prison

In a 1981 interview, Mr. Mercer said he did not kill the woman but that adverse publicity had helped convict him. He said he had found religion in prison. ''The old Tiny is dead now,'' he said in 1981. ''He's buried. He's gone. I'm a new man in my way of thinking, my attitude toward life and everything. The Lord's done this to me.''


State of Missouri v. George C. Mercer

618 S.W. 2d 1 (Mo.banc.1981)

Case Facts:

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, 1978.

It established 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.

Defendant left 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.

Defendant later 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."

Several minutes 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.

Defendant started 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.

Campbell was 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.

When Campbell 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 defendant's direction.

Finally defendant 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 purse.

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, Appellee.

No. 86-2593

Federal 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 (1978)1 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 (1981).

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 court.2 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 Factor

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. 565.012.2(6) (1978).3 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.4 We disagree.

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 agent.

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 Cir.1984).

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 found agency.5

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 balance." Id.

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. at 2742.

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 2743-44.

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 agency undisturbed.

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 (1968).

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 death penalty.6

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 original).

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 penalty?

"[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 this case?

"[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." Tr. 266-67.

469 U.S. at 415-16, 105 S.Ct. at 848.

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 Arrest

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 (1984).

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 (1976).

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.


1 This statute has been repealed by L.1983, S.B. Mo. 276, p. 922, Sec. 1 (1986)

2 The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri

3 Repealed by L.1983, S.B. No. 276, p. 923, Sec. 1, and replaced by Mo.Rev.Stat. Sec. 565.032.2(6) (1986)

4 The two aggravating factors were Mo.Rev.Stat. Sec. 565.012.2(7) Depravity of Mind ("the offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind") and Sec. 565.012.2(6) Murder as an Agent ("[t]he offender caused or directed another to commit murder or committed capital murder as an agent or employee of another person")

5 Mercer does not challenge here the jury's finding that the murder was depraved. While he challenged the use of the depravity factor in the district court, he has not renewed his challenge on appeal. Accordingly, we consider only whether agency could have been found by the jury

6 The following exchange between Mr. Hamilton (prosecutor), Messrs. Fiorella and Lozano (defense attorneys), the court, and Mr. Bumgarner is at issue:

Q [By Mr. Hamilton]. Mr Bumgarner, this is a charge of capital murder, which means that it does carry the possibility of capital punishment, or the death sentence. My inquiry is directed to find out what your attitude is toward capital punishment. If, during the trial of this case the facts and circumstances were developed that in fact the jury could consider capital punishment, would you, as a juror, consider capital punishment as a possible alternative?

A[By Mr. Bumgarner]. I don't think so.

Q. Are you morally and religiously opposed to capital punishment?

A. Yes.

Q. And you feel you couldn't bring back a sentence of--the death sentence under any circumstances?

A. I don't think so.

Q. So regardless of how severe and aggravated the circumstances are, you don't feel that you could bring back a death penalty?

A. I don't believe I could.

MR. HAMILTON: Thank you, sir. I have no other questions.

MR. FIORELLA: We would have no questions of Mr. Bumgarner.

(Venireman excused.)

THE COURT: Any challenge for cause against Harry Bumgarner?

MR. HAMILTON: The state challenges him for cause.

MR. LOZANO: Our position on the previous grounds, Judge.

THE COURT: The state's challenge of Harry Bumgarner for cause is granted. He will be excused for cause.

Tr. at 169-70


864 F.2d 1429

George Mercer, Petitioner,
William Armontrout, Warden, Missouri State Penitentiary, Respondent.

No. 88-2547

Federal Circuits, 8th Cir.

December 30, 1988

Before LAY, Chief Judge, McMILLIAN and ARNOLD, Circuit Judges.

LAY, Chief Judge.

George Mercer was convicted of capital murder in the state courts of Missouri and sentenced to death. The conviction and sentence were subsequently affirmed by the Supreme Court of Missouri, State v. Mercer, 618 S.W.2d 1 (Mo.), cert. denied, 454 U.S. 933 , 102 S.Ct. 432, 70 L.Ed.2d 240 (1981), and Mercer was later denied relief in state post-conviction proceedings. Mercer v. State, 666 S.W.2d 942 (Mo.App.1984). This court affirmed the denial by the federal district court of his petition for a writ of habeas corpus. Mercer v. Armontrout, 844 F.2d 582 (8th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 249, 102 L.Ed.2d 238 (1988).

Shortly after the Supreme Court of the United States denied certiorari, the Supreme Court of Missouri set October 20, 1988, at 12:01 a.m., as the new date for execution of sentence. Mercer filed a second petition for a writ of habeas corpus in the district court for the Western District of Missouri on October 13, 1988. The district court summarily dismissed this petition and denied Mercer's request for a stay of execution. Mercer v. Armontrout, 701 F.Supp. 1460 (W.D.Mo.1988).

An appeal was filed in this court and a motion to stay the execution was likewise filed. The motion was assigned to the original panel members who had passed on the first habeas case. The motion to stay the execution was temporarily granted because it was presented to the panel of this court at a time when court was in session and it was impossible for the three judges to adequately review the material prior to the designated time of the execution. Mercer v. Armontrout, No. 88-2547-WM (8th Cir. Oct. 19, 1988).

Petitioner's second petition for a writ of habeas corpus raised several new issues relating to ineffective assistance of counsel. The court's preliminary concern was whether Mercer's new petition stated issues worthy of granting a certificate of probable cause. After studied analysis we have now determined that a certificate of probable cause should not issue in the present case. However, this is a capital case and the State has questioned certain procedural processes of this court in issuing our initial stay order. Accordingly, it is important to initially discuss standards concerning a federal court's review of motions to stay state warrants of execution.

Human life is our most precious possession. Our natural instincts guide us from birth to sustain life by protecting ourselves and protecting others. All notions of morality focus on the right to live and all of man's laws seek to preserve this most important right. When presented with challenges to a capital sentence, it would be easy to respond rhetorically by asking, "what about the victim whom the defendant has been found guilty of unmercifully killing."

But this approach fails to reflect on the ideal that a government founded by a moral and civilized society should not act as unmercifully as the defendant is accused of acting. If the original murder cannot be justified under man's laws, it is equally unlawful and inhumane to commit the same atrocity in the name of the state. What separates the unlawful killing by man and the lawful killing by the state are the legal barriers that exist to preserve the individual's constitutional rights and protect against the unlawful execution of a death sentence. If the law is not given strict adherence, then we as a society are just as guilty of a heinous crime as the condemned felon. It should thus be readily apparent that the legal process in a civilized society must not rush to judgment and thereafter rush to execute a person found guilty of taking the life of another.

I. Granting Stay of Execution

The initial point of inquiry in granting or denying a stay of execution in a death case must be whether the petition is frivolous. If the petition is not frivolous on its face, the very essence of this court's duty is to study and research the points raised. The severity and finality of the death penalty requires the utmost diligence and scrutiny of the court.

In capital cases the law is uniquely complex and difficult to understand. No judge can digest, retain, or apply these principles to a voluminous state court record without reflective study and analysis. To suggest that a life or death decision can be made by simply reading a petition is to advocate dereliction of judicial duty. The penalty has already been rendered and approved by the highest court of the state in which the crime has been committed. However, as worthy as state courts may be, the state process does not always ensure constitutional process.1

Experience has long demonstrated that human judgment rendered through judicial process is not infallible. As long as federal habeas review exists, it is the duty of federal judges to make certain that an individual does not forfeit his life at the hands of the state unless the state process lawfully rendered the punishment, it complied with federal constitutional standards, and the defendant was furnished with competent and effective representation within the norms required by the sixth amendment. Regardless of how heinous the crime, no one may reasonably question that a predicate to carrying out a death sentence is careful review of the constitutionality of the defendant's conviction and sentence.

The State is critical of our granting an emergency stay in this case. We reject this criticism because it advocates execution of a death sentence without this court's reflective study of the issues raised in this case. It is a far greater tragedy to permit an unlawful execution than to delay a state's death warrant a few weeks to ensure that an irreparable mistake does not occur.

II. Repetitive Petitioning and Appointed Counsel

The State urges that habeas petitioners may "abuse" the writ by filing repetitive or "successive" petitions.2 It is often asserted that in death cases repetitive writs present motions to stay and that such procedural tactics are used to merely prolong the inevitable. Notwithstanding this possibility, "[t]he consequences of injustice--loss of liberty and sometimes loss of life--are far too great to permit the automatic application of an entire body of technical rules whose primary relevance lies in the area of civil litigation." Sanders v. United States, 373 U.S. 1, 24, 83 S.Ct. 1068, 1082, 10 L.Ed.2d 148 (1963) (Harlan, J., dissenting). Concerns for comity to a sovereign state and finality to its judgments do not outweigh the absolute need to protect against the deprivation of an individual's constitutional rights which might invalidate the capital sentence.

The apparent question is whether there exists sufficient means within the framework of the law to prevent vexatious delay resulting from state prisoners who seek to abuse the writ. In considering this question, certain preliminary factors must be taken into account. First, it must be recognized that a convicted defendant sentenced to death will attempt to assert every means available to prevent his execution. The instinctive human desire to live accounts for the proliferation of petitions for writs and stays. Nothing short of a complete bar to such petitions will prevent their continued filings.

Second, lawyers should not be faulted for their services to indigent condemned prisoners in attempting to set aside a capital sentence. Courts appoint lawyers to serve these prisoners to assure that no condemned person shall die by reason of an unconstitutional process. It is important to understand the serious nature of the voluntary service involved.

The American Bar Association has initiated, and the Judicial Conference of the United States has supported, the establishment of Death Penalty Resource Centers. The purpose of these Centers is to increase the availability of competent attorneys to review the state processes and assure competent and effective representation of individuals sentenced to death.

This project is inspired by the fact that competent representation is difficult to secure. The scarcity of volunteers among lawyers is understandable considering the fact that the average time that a competent lawyer labors in post-conviction review of a single death sentence is approximately one-quarter of a lawyer's billable hours for one year. These lawyers receive little or no compensation for this service.

It is essential to remember that counsel is appointed to ensure the preservation of the defendant's constitutional rights and to make certain that unlawful executions do not occur. The procedural mechanism for reviewing these petitions must strive to promote these same principles. The federal judiciary must therefore take particular care in death penalty cases to give patient and thoughtful review of claims presented by petitioners through their appointed counsel.

III. Procedural Barriers

Once an initial petition for a writ of habeas corpus has been fully processed by a federal court, a state prisoner must comply with certain procedural prerequisites before obtaining subsequent federal review of any constitutional claims relating to his conviction or sentence.

A fundamental requirement contained in these procedures is that a state prisoner must exhaust his state court remedies. Assuming a defendant has filed one state court post-conviction petition before filing a petition in federal court, the doctrine requiring exhaustion of an existing state court remedy becomes inapplicable in light of the fact that generally no state court remedy exists.

The next procedural barrier a prisoner must confront is the rule which precludes federal review of issues if there has been a procedural default by the prisoner on those issues in the state court. Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). Thus a petitioner cannot assert a claim of constitutional error at trial if he did not contemporaneously object at trial.

Furthermore, the petitioner cannot assert claims of constitutional error on his appeal if the issue was omitted on the state court appeal. Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 2665, 91 L.Ed.2d 434 (1986). See also Stokes v. Armontrout, 851 F.2d 1085, 1092 (8th Cir.1988) (application of "cause and prejudice" rules in federal habeas proceeding when petitioner's counsel failed to raise constitutional claims in state post-conviction proceeding). The procedural by-pass rule is said to promote finality and deference to the procedure of the state court. Smith v. Murray, 477 U.S. at 533, 106 S.Ct. at 2665.

Two exceptions exist, however, to the procedural by-pass rule. First, the existence of both "cause" and "prejudice" may excuse the procedural default in state court. Cause is an ill-defined term over which federal judges have debated. Generally, cause can be established if some extrinsic circumstances prevented counsel from raising the issue. The usual example is the emergence of a new principle of constitutional law previously unrecognized at the time of the state court proceeding. Reed v. Ross, 468 U.S. 1, 18, 104 S.Ct. 2901, 2911, 82 L.Ed.2d 1 (1984). Cause may also be established by a sixth amendment violation of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Kimmelman v. Morrison, 477 U.S. 365, 380-82, 106 S.Ct. 2574, 2586-87, 91 L.Ed.2d 305 (1986). Once cause is established, "actual" prejudice must be separately proven. See United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982); Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982).

The other exception to Sykes now appears in Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) and Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). The procedural default rule can be avoided if a fundamental miscarriage of justice has occurred where "the alleged error undermined the accuracy of the guilt or sentencing determination." Smith v. Murray, 477 U.S. at 539, 106 S.Ct. at 2669. See also Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. at 2650.

Before ineffective assistance of counsel may be used to obviate a state procedural by-pass rule, actual prejudice must be shown. This requires a demonstration of "a reasonable probability that, absent the [attorney's] errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland v. Washington, 466 U.S. at 695, 104 S.Ct. at 2068-69. In dealing with the prejudice portion of the cause and prejudice test under Sykes, the Supreme Court has clearly required a showing of actual prejudice as well as the demonstration of cause. Murray v. Carrier, 477 U.S. at 495, 106 S.Ct. at 2649. See also Engle v. Isaac, 456 U.S. at 110, 102 S.Ct. at 1563.

The terms in Sykes are therefore not dissimilar to Strickland' prejudice test for ineffective assistance of counsel. Cf. United States v. Frady, 456 U.S. at 167-68, 102 S.Ct. at 1594-95; Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). Similarly, in Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), the court observed that the "ends of justice" standard involved in review of successive petitions for a writ requires a showing of a constitutional claim with a colorable showing of factual innocence. Id. at 444-45, 106 S.Ct. at 2622 (citing Sanders v. United States, 373 U.S. at 15, 16-17, 83 S.Ct. at 1077-78).

Although each of the tests relating to actual prejudice are raised in a different context or stage in presenting habeas claims, it is readily apparent that the same core concern pervades the ultimate requirement for a habeas petitioner to succeed.3

In a repetitive filing of a habeas petition of claims that have not been previously submitted, the petitioner faces the implicit barrier of a bevy of procedural by-pass rules. In the present case, for example, Mercer raises claims of ineffective assistance of trial counsel which he has not raised before in either his state or federal post-conviction proceedings. Before we may review the merits of those claims, we must question whether there was cause and prejudice in his failure to raise these issues in his state post-conviction claims or his first federal habeas petition. Cf. Stokes v. Armontrout, 851 F.2d at 1092. This raises the question of whether his counsel for the post-conviction proceedings was ineffective and caused him prejudice in not raising these claims. See, e.g., Gilmore v. Armontrout, 861 F.2d 1061, 1063-64 (8th Cir.1988); Stokes v. Armontrout, 851 F.2d at 1092-96.

Petitioner has made no showing that his first trial counsel in the state post-conviction proceeding or his trial counsel in the first habeas proceeding was ineffective under Strickland standards. Nor has petitioner demonstrated a fundamental miscarriage of justice to obviate the cause and prejudice standard. See Smith v. Murray, 477 U.S. at 539, 106 S.Ct. at 2669.

IV. Certificate of Probable Cause

The Supreme Court has held that procedural default must be enforced in all cases "devoid" of a constitutional claim which "undermined the accuracy of the guilt or sentencing determination." Smith v. Murray, 477 U.S. at 539, 106 S.Ct. at 2669. We have reviewed Mercer's claims to determine whether the accuracy of his guilt and sentencing determinations are prejudically undermined by his belated constitutional claims.

To attain a certificate of probable cause, a petitioner must present constitutional claims that are at least debatable among reasonable jurists. Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983). In his application, Mercer claims that the prosecution withheld mitigating evidence, the "depravity of mind" instruction was unconstitutional, and he received ineffective assistance of counsel in several particulars.

A. Prosecution Withheld Mitigation Evidence

Mercer contends that the prosecution withheld evidence that the victim had engaged in the illegal use and sale of drugs. He argues that this evidence could prove that her death was caused by drugs or, in the alternative, by John Campbell with whom she associated due to her involvement with drugs. This argument cannot succeed. As the district court observed, the cause of death was disputed at trial. Mercer claimed that the medical report made on the victim's death was inconclusive and inconsistent. He further argued that John Campbell actually murdered the victim.

Consequently, it cannot be urged that presentation of the evidence in question would have led to a theory or defense which had not been presented at trial. Moreover, while evidence that the victim used and distributed drugs might have supported these contentions, that support at best would have had minimal influence. The jury determined beyond a reasonable doubt that Mercer strangled the victim to death. Because there is ample evidence in the record to support the jury's finding, it would be unreasonable to conclude that presentation of the allegedly withheld evidence would have led to a different outcome.

B. Depravity of Mind Instruction

Mercer also contends that the depravity of mind instruction, provided to the jury on the issue of aggravating circumstances, was unconstitutionally vague. While the instruction has been previously reviewed and upheld on the basis of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), he argues that the Supreme Court has recently redefined the law in this area. In Maynard v. Cartwright, --- U.S. ----, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), the Court held that the language "especially heinous, atrocious, or cruel" provided inadequate guidance for sentencing and was therefore unconstitutional. Id., 108 S.Ct. at 1859. However, Cartwright is clearly an application, rather than an expansion, of Godfrey. Id. 108 S.Ct. at 1858-59.

The constitutionality of the Missouri instruction therefore remains intact. As required by Godfrey, the jury's determination on this issue was properly reviewed by the appellate court. State v. Mercer, 618 S.W.2d at 10-11.

Furthermore, the instruction required that in addition to outrageous or wanton and inhuman conduct, there must be a finding of depravity of mind.4 This requirement distinguishes the instant case from Cartwright, in which the instruction only required a general finding that the murder was "especially heinous, atrocious, or cruel."5 Thus, the instruction, viewed in the light most favorable to Mercer's claim, did not undermine the accuracy of the sentencing determination.C. Ineffective Assistance of Counsel

Finally, Mercer raises a host of claims of ineffective assistance of trial counsel in his second habeas petition. Mercer argues that these claims were not contained in the initial petition because he was at that time still represented by trial counsel, Cenobio Lozano, who failed to allege ineffective assistance of counsel as the result of the obvious conflict of interest. However, assuming this to be true, upon review of the record, these claims do not in any way demonstrate a colorable showing of actual innocence or that the sentencing process was undermined.

Mercer contends that counsel erred in failing to discover and present evidence relating to the victim's alleged illegal use and sale of drugs. Further, he asserts error in counsel's failure to present a forensic pathologist to testify regarding the condition of the victim's body.6 As previously stated, it is highly improbable that evidence of this sort would have changed the outcome of the trial. The failure to present such evidence was not sufficiently prejudicial to Mercer's case to find ineffective assistance of counsel.

Mercer also alleges that counsel erred in recommending that he waive instructions on lesser included offenses, namely, the first degree murder and felony-murder instructions. The Missouri Court of Appeals found that Mercer and his counsel had expressly waived these instructions. Mercer v. State, 666 S.W.2d at 945-47. The trial transcript clearly demonstrates that Mercer on two separate occasions knowingly and willingly waived these instructions. No prejudice exists under these circumstances.

Finally, Mercer asserts that counsel erred in failing to develop and present evidence of mitigating circumstances. In particular, he argues that counsel should have pursued a theory of diminished capacity due to the consumption of alcohol. Although there is evidence that indicates Mercer had consumed alcohol at the time of the murder, there is nothing in the record demonstrating that he was intoxicated.

In fact, there is considerable evidence supporting the jury's conclusion that Mercer's conduct was performed in a sober and calculated manner. It is clear that Mercer was not prejudiced by counsel's decision not to pursue a defense based on alcohol consumption. It would be unreasonable to conclude that the presentation of this mitigation evidence, either during the trial or in the sentencing phase, would have altered Mercer's fate in these proceedings.

Mercer's second petition for a writ of habeas corpus has failed to demonstrate any substantial claim which, if true, would have undermined the accuracy of the guilt or sentencing determination. A certificate of probable cause is denied and this court's previous order to stay execution of the sentence is ordered vacated. Leave to appeal in forma pauperis is denied and the appeal is dismissed. The mandate shall issue forthwith.


1 Since its decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Supreme Court has vacated the sentence, or has affirmed the vacation of sentence, in roughly half of the death penalty cases in which it has granted certiorari. See, e.g., Thompson v. Oklahoma, --- U.S. ----, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988); Maynard v. Cartwright, --- U.S. ----, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); Satterwhite v. Texas, --- U.S. ---- 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988); Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987); Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987); Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987); Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987); Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981); Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977); Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977); Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Woodson v. North Carolina, 428 U.S. 280 , 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325 , 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972); Crampton v. Ohio, 408 U.S. 941 , 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972)

2 It bears noting that the terms "successive petition" and "abuse of the writ" have different meanings:

A "successive petition" raises grounds identical to those raised and rejected on the merits on a prior petition. See Sanders v. United States, 373 U.S., at 15-17 [83 S.Ct. at 1077-78]. * * * The concept of "abuse of the writ" is founded on the equitable nature of habeas corpus. Thus, where a prisoner files a petition raising grounds that were available but not relied upon in a prior petition, or engages in other conduct that "disentitle[s] him to the relief he seeks," the federal court may dismiss the subsequent petition on the ground that the prisoner has abused the writ. Id., at 17-19 [83 S.Ct. at 1078-79].

Kuhlmann v. Wilson, 477 U.S. 436, 444 n. 6, 106 S.Ct. 2616, 2622 n. 6, 91 L.Ed.2d 364 (1986).

3 There are of course important distinctions implicit to the Court's rulings in Sykes and Strickland. However, for the reasons previously discussed regarding the developments of Sykes under Smith and Carrier, the concerns behind the ineffective assistance of counsel standard have become intertwined in the process of determining procedural bar

4 The instruction reads "[i]n determining the punishment to be assessed against the defendant for the murder of Karen Keeton, you must first unanimously determine that ... the murder of Karen Keeton involved depravity of mind and that as a result thereof it was outrageously or wantonly vile and inhuman." Mo.Rev.Stat. Sec. 565.012.2(7) (repealed)

5 In any event, the issue of whether Cartwright alters the law as stated in Godfrey is immaterial since the jury also found an additional aggravating circumstance based on an agency theory. Mercer v. Armontrout, 844 F.2d at 584. Under Missouri law, a death sentence need not be vacated if only one of several aggravating circumstances is found deficient. Id

6 It must be noted that counsel did present testimony from Charles Pottinger who, while not a forensic pathologist, is a technician with the Kansas City Police Department and capable of expert comment on the physical evidence in this case


George Mercer



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