Gary Lee Roll, David Rhodes, and John Browne went to the Scheper
family home at about 4:00 am on Aug. 9, 1992, with the intent to
Roll knocked on the door and Sherry Scheper, 47, answered.
Displaying a badge, Roll identified himself as a police officer and
ordered her to open the door.
When she did, Roll and Rhodes entered.
Browne, who knew the family, remained outside, fearing he would be
Inside the house, Roll ordered Randy and Sherry Scheper to lie face-down
on the carpet. Fearing the family could identify him, Roll fatally
shot Randy, 17, in the head and beat Sherry to death with his gun.
Roll or one of the accomplices fatally stabbed Randy’s 22-year-old
brother Curtis with a hunting knife.
In the weeks after the murder, Browne secretly tape recorded a
conversation with Roll, who admitted the murders. Browne gave the
tape to a friend, who turned it over to the police.
Roll pled guilty to all three murders and other charges. Roll had no
prior criminal history and was a military veteran.
Rhodes, who also pleaded guilty, received three consecutive life
sentences for second degree murder. Browne pleaded guilty to one
count of second degree murder and received a life sentence.
Gary Lee Roll
(November 22, 1951 - August 30, 2000) was executed
by lethal injection in the state of Missouri. He was
convicted of the murders of 3 members of the Sheper
family in Cape Girardeau, Missouri during a robbery
Roll shot the
mother and one son with his pistol and stabbed the
other with a hunting knife. The robbers made off
with approximately 12 ounces of marijuana and $214
cash. A taped conversation where Roll admitted to
the murders was turned into police by an accomplice.
He was arrested in November 1992, pleaded guilty of
all counts, and was sentenced to death in November
filed few appeals of his sentence and he did not
actively seek to avoid it. He reportedly had chronic
jaw pain from an injury incurred while serving in
the United States military and was healing from
breaking his leg after a fall from his roof and
consumed recreational drugs to lessen the pain.
reportedly under the influence of alcohol, marijuana,
and 4 to 6 "hits" of LSD at the time of his crimes.
It has been theorized that when faced with a
decision between life in prison with pain and no
drugs and death, Roll preferred his death sentence.
He was executed on his originally scheduled date of
August 30, 2000.
Missouri v. Gary L. Roll
942 S.W.2d 370 (Mo.banc)
alcohol, marijuana, and four to six hits of LSD, Gary Lee Roll,
David Rhodes, and John Browne decided to rob a drug dealer. Roll
supplied each of them with a gun and a knife and drove the three to
the home of an alleged drug dealer. When Roll attempted to force
open the front door, a child inside cried out. Rhodes and Browne
refused to go inside, so they all returned to Roll’s residence.
Later that night, they decided to rob a different
drug dealer, Randy Scheper. At about 4:00 a.m., Roll drove to
Scheper’s house with Rhodes and Browne. Roll knocked on the door and
Scheper’s mother, Sherry, answered. Displaying a badge, Roll
identified himself as a police officer and ordered her to open the
door. When she did, Roll and Rhodes entered. Browne, who knew the
family, remained outside, fearing he would be recognized. Inside the
house, Roll fatally shot Randy in the head and beat Sherry to death
with his gun. Toll (either alone or in concert with Rhodes) fatally
stabbed Randy’s brother Curtis. Roll, Rhodes, and Browne then left
with some marijuana and $215 in cash.
Returning home, Roll cleaned blood and hair from
his gun and blood off his knife and clothing. He wrapped the murder
weapons and a box of ammunition in a package, which his son buried
in the woods behind Roll’s house.
In the weeks after the murders, Browne began to
fear for his safety. To protect himself, Brown wore a tape recorder
during a conversation with Roll about the murders. On the tape, Roll
admitted committing the murders and getting rid of the murder
weapons. Roll also said that he killed Schepers because "they knew
everybody...and I figured then they know me, because of something
that was said in there..." Browne gave the tape to a friend for
safekeeping, who in turn gave it to the police.
Missouri Attorney General Press
July 18, 2000 - State Supreme Court Sets Aug. 30
Jefferson City, Mo. -- The Missouri Supreme Court
today set an Aug. 30 execution date for Gary Lee Roll, sentenced to
die for the 1992 murders of three members of the Scheper family in
Roll (DOB - 11/22/52) forced his way into the
Scheper house, along with accomplice David Rhodes, during the
predawn hours of Aug. 9, 1992 in order to rob Randy Scheper.
fatally shot Randy, 17 years old, in the head before beating to
death Sherry Scheper, 47 years old, with his gun. Then Roll, either
alone or with Rhodes' help, fatally stabbed Randy's 22-year-old
Roll pled guilty to three counts of first degree
murder, three counts of armed criminal action and one count of
robbery in connection with the crimes. The Boone County Circuit
Court, which was hearing the case on a change of venue, sentenced
him to death.
Rhodes, who also pleaded guilty, received three
consecutive life sentences for second degree murder; a third
accomplice, John Browne, pleaded guilty to one count of second
degree murder and received a life sentence.
The Missouri Supreme Court set an execution date
of Aug. 30 for Gary Lee Roll, convicted of killing three members of
a Cape Girardeau family in 1992.
Gary Lee Roll, David Rhodes, and John Browne went
to the Scheper family home at about 4:00 am on Aug. 9, 1992, with
the intent to commit robbery.
Roll knocked on the door and Sherry Scheper, 47,
answered. Displaying a badge, Roll identified himself as a police
officer and ordered her to open the door. When she did, Roll and
Rhodes entered. Browne, who knew the family, remained outside,
fearing he would be recognized.
Inside the house, Roll ordered Randy and Sherry
Scheper to lie face-down on the carpet. Fearing the family could
identify him, Roll fatally shot Randy, 17, in the head and beat
Sherry to death with his gun. Roll or one of the accomplices fatally
stabbed Randy’s 22-year-old brother Curtis with a hunting knife.
Roll, Rhodes, and Browne then left with 12 plastic sandwich-sized
bags full of marijuana and $214 in cash.
Returning home, Roll cleaned blood and hair from
his gun and blood off his knife and clothing. He wrapped the murder
weapons and a box of ammunition in a package, which his son buried
in the woods behind Roll’s house.
The murder went unsolved for several weeks,
however, Browne began to fear for his safety. To protect himself,
Brown wore a tape recorder during a conversation with Roll about the
murders. On the tape, Roll admitted committing the murders and
getting rid of the murder weapons.
Roll also said that he killed the
Schepers because "they knew everybody...and I figured then they know
me, because of something that was said in there..." Browne gave the
tape to a friend for safekeeping, who in turn gave it to the police.
Roll pled guilty to three counts of first-degree
murder and other charges. Roll and the teens were arrested in
November 1992. Roll later pleaded guilty to all 3 murders.
he hoped the victims' family could forgive him because he didn't
believe they could find peace until they did. "If I thought there
was something I could say, I would say anything. But I don't think
there is," he said.
(March 25, 1997)
The Missouri Supreme Court
issues opinions today affirming the convictions and death sentences
of Gary Lee Roll and Daniel Basile.
Gary Roll was convicited in the murder of three
people during the robbery of a drug dealer. He pleaded open to three
counts of first-degree murder without a plea offer. Evidence showed
that his attorney, his former college fraternity brother and friend,
had advised him to plead guilty and promised him that he would not
get the death penalty.
Further, his friend(?) took everything Gary
owned as a retainer, including real estate and personal properly,
and failed to conduct an investigation of penalty phase issues, such
as mental illness and drug abuse.
Gary was a veteran with no previous criminal
record. His alleged accomplices were teenagers with a history of
criminal conduct. Despite this fact, the court found that Gary was
the leader by virtue of his being older than the others.
also existed which was not presented during the sentencing hearing
that Gary had a broken leg, was unable to maneuver well enough to
commit the charged crimes and had, in fact, stayed in the vehicle
while the murders were being committed in the house.
The Court's affirmance of this case is a complete
miscarriage of justice. If anyone would like further information
about this case, please E-mail me. I am looking for ways to get
Gary's story out so that publicity can be generated for this case.
The Case of the Dangers
At 7:33 a.m. on Sunday, August 9, 1992, officers
of the Cape Girardeau Police Department responded to the scene of a
triple homicide at 31 N. Henderson Street in Cape Girardeau. Randy
Scheper, 17, had been shot to death in his bedroom. He had been shot
once in the head. His mother, Sherry Scheper, 47, had been beaten
and stabbed to death in the living room, her skull crushed by a
blunt object and her back and chest stabbed a total of four times.
Randy’s mentally-handicapped brother, Curtis Scheper, 22, had been
stabbed to death. Three deep knife wounds each penetrated
approximately six inches into his back.
It was the first triple homicide in Cape
Girardeau in anyone’s memory. The Major Case Squad was called out
Over the next several days, officers worked
tirelessly trying to solve the crime. The usual angles of domestic
violence and drug connections were explored exhaustively. Although
investigators discovered that 17-year-old Randy Scheper was a small-time
marijuana seller, no connections could be found directly relating
any particular person to his death.
Investigators determined that Randy usually kept
his marijuana in a large "Cheese Puffs" can. It was missing. But
nothing else seemed to have been stolen from the crime scene.
Finally, after several days, all early leads
having been run down, the case still remained unsolved. Disappointed,
the Major Case Squad disbanded. The case was turned back over to the
Cape Girardeau Police Department to pursue any future leads.
Three months later, on November 3, 1992, a clue
arrived on the desk of Detective Zeb Williams that led to the
solving of the murders. It came in the form of a note written on
lined notebook paper. The note said:
"Gary Rhodes (177) killed Randy (Henderson)
etc. 2 witnesses to the murder live in fear of him. 1 other than I
knows he is guilty and will not talk. I am Del Orfo. I will provide
more info and evidence for any reward money. There are conditions:
(I) I will not testify (II) Certain parties must not be questioned (they
are in danger) (III) Certain parties were used by him may appear
guilty, they are not, no matter what my evidence shows (on my honor
and word). Del Orfo."
Detective Williams eventually tracked down the
identity of "Del Orfo" by noticing that the letters of the name
might correspond to the seven digits of a Cape Girardeau telephone
number. He called the number. The person who answered proved to be
the author of the letter.
"Del Orfo" met with investigators and told them
that Randy Scheper and his family had been murdered for Randy’s
marijuana and money. Three robbers had cooked up a plan to rob some
drug dealer of his drugs and money, thinking it would be the perfect
crime. What would the drug dealer do? Report the theft of his
marijuana to the police? A friend of Orfo’s, John Gregory Browne,
was one of the three and had served as the lookout while the other
two went inside. The original plan had not called for anyone to be
killed. But the ringleader, Gary Lee Roll, had murdered the Schepers
once Randy Scheper made a comment suggesting that he recognized Roll.
John Gregory Browne, 21, in the ensuing months,
had become frightened that Roll would kill Browne next, to
permanently seal his lips. Browne had wired himself with a tape-recorder
and had made a tape-recording of himself talking about the murders
with Roll. He then turned the tape over to "Del Orfo" for safe-keeping
just in case he would ever turn up dead.
"Orfo" had listened to the tape-recording and had
decided to go to the police with the information.
"Orfo" agreed to wear a wire himself. Under
police surveillance, he met with John Gregory Browne. Once Browne
made additional statements incriminating himself as the lookout for
the robbery, the police moved in and arrested him.
Browne gave a full confession to Detective Zeb
Williams of the Cape Girardeau Police Department and Trooper Don
Windham of the Missouri Highway Patrol.
The investigators then moved carefully against
the other two conspirators.
David Wayne Rhodes, 18, was located and arrested.
He, too, gave a full confession. He had entered the Scheper home
with Roll. He confirmed that Browne had waited outside since the
Schepers knew him. He admitted holding the Schepers at gunpoint as
Roll killed them one by one.
Rhodes and Browne both told investigators that
Roll, 41, a military veteran, had vowed that he would never be taken
alive, and that he slept on a couch in his living room with a gun
next to him and an attack Rottweiler as a guard dog.
Ironically, the Cape Girardeau Police Department
SWAT team was away on training. The Missouri Highway Patrol SWAT
team was summoned.
At 4:30 a.m. on November 4, 1992, the SWAT team
encircled Roll’s house. Armed with a search warrant, and fully-briefed
about his vow not to be taken alive, they smashed through the
sliding-glass door of his living room with a battering ram and
tossed "flash-bang grenades" into the room. The grenades were
designed to inflict no permanent injuries, but instead to emit loud
bangs and bright flashes intended to stun and disorientate a
dangerous suspect. Rushing in immediately following the detonation
of the grenades, the SWAT team caught Roll as he was coming off his
couch. They reached him before he got to his gun. He was taken alive
and uninjured. His Rottweiler was also uninjured, though badly
shaken by the noise of the explosions.
Roll claimed to know nothing about the murders.
The murder weapon was found buried on his property, however, and the
police badge used to gain entry into the Scheper home was found in
In extensive interviews with the two co-conspirators
and other witnesses, police discovered exactly what had happened to
the Scheper family. They had, indeed, been slaughtered as a result
of Randy’s marijuana-selling activity.
David Wayne Rhodes was 18 years old at the time
of the murders. He had been living with Gary Lee Roll, 41, who was
the father of a sixteen-year-old boy who was a friend of Rhodes.
Roll had been letting Rhodes live with them for most of the summer
John Gregory Browne was 21 at the time of the
murders. He had been a friend of Curtis Scheper, the mentally
handicapped boy, all through school. John Gregory Browne and Curtis
Scheper had been in Special Education classes together and were best
David Wayne Rhodes and John Gregory Brown had
been over at 41-year-old Gary Lee Roll's house on the evening of
Saturday, August 8, 1992. They were playing Nintendo games, watching
TV, and using LSD.
Gary Lee Roll's 16-year-old son was also there
during some, but not all of the conversations.
During the course of the night, the trio started
talking about the possibility of doing a robbery. Specifically, Gary
Lee Roll wanted to rob a drug dealer of his drugs and money. They
brain-stormed about drug dealers they knew, about who they might rob.
They eventually settled upon a drug-dealer named
Stuart, who dealt in marijuana. John Gregory Browne knew Stuart
because Stuart's ex-wife was married to John Gregory Browne's cousin.
Also, John Gregory Browne had seen Stuart deliver marijuana to the
Scheper house when Browne had been there in the past visiting Curtis
Gary Lee Roll provided the weapons to be used in
the robbery. He carried a Smith & Wesson .357 revolver and a double-edged
knife with a gray handle and a 6 and 7/8 inch blade. Roll gave David
Wayne Rhodes and John Gregory Browne each a .22 pistol from his gun
cabinet, and supplied at least one of them with a knife.
Roll then drove them to Stuart's home on Lorimier
Street in Cape Girardeau, which was actually Stuart's girlfriend's
house, where he'd been living for a week or so. John Gregory Browne
gave directions how to get there.
Once at Stuart's house, they parked the truck
behind the house. One of them cut Stuart's telephone and cable TV
wires. They then went onto his front porch. Gary Lee Roll knocked on
the door, but got no answer. He then hit the door with his shoulder
a couple of times, but didn't get it open. The trio then heard a
little girl's voice say, "Daddy, there's somebody at the door!" John
Gregory Browne and David Wayne Rhodes both insisted that they were
not going through with the robbery since a child was inside. Roll
called them sissies, but they left and drove back to Roll's house.
Roll’s son was still at Roll’s house. By this
time, the girlfriend of David Wayne Rhodes, who was 17, was also at
the house. Rhodes and his girlfreind went to bed. Roll’s son also
went to bed. Gary Lee Roll and John Gregory Brown stayed up late
into the night, talking and scheming.
Around 4:00 a.m., Gary Lee Roll woke David Wayne
Rhodes. Roll told him that they'd decided to rob Randy Scheper.
Once again, Roll packed his .357 Smith & Wesson
and supplied the others with .22 handguns. Roll carried his gray-handled
double-edged knife with the 6 and 7/8 inch blade. At least one of
the others carried a knife. Roll drove them to the Scheper home at
31 N. Henderson Street. They rode over in his pick-up truck, Roll
driving. John Gregory Browne sat in the middle. David Wayne Rhodes
sat on the passenger side.
When they arrived at the Scheper home, a brick
house in a residential neighborhood near Southeast Missouri State
University, one of them cut the Schepers’ telephone and cable TV
The plan was for John Gregory Browne to wait
outside, since the Schepers all knew him. Roll and Rhodes did not
wear masks. They did not think the Schepers knew them. They would be
the ones to go in.
Gary Lee Roll had a police badge. It was a real
one from the Cape Girardeau Police Department he'd found in the park
years before. Roll knocked on the door. The mother, Sherry Scheper,
came to the door and peeked out a little window in the door. Roll
held up the badge. He claimed that he was Lt. John Brown from the
Cape Girardeau Police Department.
"Open the door!" he yelled.
"Just a minute," she replied.
"Now!" he insisted.
"Okay," she said, and opened the door.
Roll pushed his way in, Rhodes following him.
Roll pointed the gun at Sherry Scheper and told
her to get down on the floor. She did.
Curtis Scheper, the 22-year-old mentally
handicapped boy came into the livingroom from his bedroom downstairs.
Roll ordered him to lie down next to his mother. Curtis did so.
Then Randy Scheper, the 17-year-old drug-dealer,
came into the room from the direction of his first-floor bedroom.
Gary Roll pointed his gun at him.
"We want your money and your drugs," Roll said.
"I ain't giving you [anything]," Randy replied.
Roll back-handed him across the face with his
left hand. The gun he was holding in that hand discharged, shooting
a hole in the wall, and leaving a slug that would later be recovered
by the police that matched to Roll’s gun.
Randy fell to his knees, screaming in pain.
Roll repeated his demand for drugs and money.
Randy said, "My Dad will hear about this."
But Randy got to his feet and took Gary Lee Roll
back to Randy's bedroom.
Roll ordered David Rhodes to watch Curtis and
Sherry while he was gone.
Rhodes held them on the floor at gunpoint after
Gary Lee Roll and Randy Scheper were out of sight. No more than a
minute passed before David Wayne Rhodes heard a gunshot.
At the sound of the gunshot, Sherry Scheper put
her hands over her ears. She still lay face-down on the floor.
Less than a minute after the gunshot, Gary Lee
Roll came back from Randy Scheper's bedroom, carrying a handful of
marijuana cigarettes. He stuffed them into the pocket of his jeans
and knelt next to Curtis Scheper. He quickly stabbed Curtis three
times in the back with the gray-handled knife.
Curtis didn't even flinch as he was stabbed. He
didn't make a sound.
Gary Lee Roll then turned his attention to the
mother of the two boys -- Sherry Scheper.
"We want your money and your drugs, and we want
She whispered, "They're upstairs."
Roll ordered David Wayne Rhodes to take her
upstairs to get them.
David Wayne Rhodes escorted Sherry Scheper
upstairs to her bedroom at gunpoint in her own home. She got a "Cheese
Puffs" cannister that contained about 12 baggies of marijuana and
gave it to Rhodes. She also gave him about $214 dollars from her
purse next to the bed. She begged him not to kill her.
Rhodes took her back downstairs, still at
Once they were downstairs, at the foot of the
steps, Gary Lee Roll began the process of killing Mrs. Scheper. But
she didn't die easily.
He hit her in the head with his gun. He stabbed
her. She wasn't going down without a struggle.
David Wayne Rhodes watched briefly, but went
outside as Roll was killing Sherry Scheper. Rhodes handed the "Cheese
Puffs" can to John Gregory Browne.
"What’s going on?" Browne asked.
"You don’t want to know," Rhodes said, before
returning to the house.
Once back inside, Rhodes saw that Sherry Scheper
had fallen to her knees. She was clinging to Gary Lee Roll's leg as
he was beating her head with his gun.
She was gagging and gurgling in her own blood.
Rhodes felt sick and hurried back outside, where
he and John Gregory Browne waited in the truck until Gary Lee Roll
When Gary Lee Roll came outside, he held the gun
in one hand and the knife in the other. The Smith & Wesson revolver
was covered with hair and blood. The knife was also covered with
blood. Roll got into the truck and drove them to his house.
Back at Roll's house, David Wayne Rhodes smoked a
marijuana cigarette with his girlfriend. He was shaking. He and she
went to Rhodes’ bedroom.
Meanwhile, Gary Lee Roll stood at the kitchen
sink and washed the blood and hair off the gun and the blood off the
knife. He put all three guns and the knives underneath the kitchen
Later, after everyone else was in bed, John
Gregory Browne watched as Gary Lee Roll put bleach on his pants leg
in an effort to get the blood off his jeans.
Gary Lee Roll's take from this robbery, from
these murders of three people, was approximately 12 sandwich size
baggies of marijuana and approximately $214.
On the night of the murders, Gary Lee Roll
threatened both of the younger robbers -- John Gregory Browne and
David Wayne Rhodes -- that they'd better not ever tell the police
what had happened or he would kill them.
They took him very seriously.
Over the next couple of months, John Gregory
Browne, the 21-year-old special education student, became more and
more afraid of Gary Lee Roll. Browne felt that Roll might decide to
kill Browne since Roll knew he was a witness to the fact Roll had
murdered three people.
Browne finally decided to make a tape-recording
of himself talking to Gary Lee Roll about the murders. He enlisted a
friend, "Del Orfo," to help him hide a tape-recorder on himself.
Without the police being involved at all, John Gregory Browne went
to Gary Lee Roll's house on October 25, 1992, and tape-recorded a
conversation with Roll. On the tape, Gary Lee Roll made several
comments implicating himself in the murders:
(1) When Browne said he'd been around people who
were talking about the Scheper homicides, Roll told him: "You don't
act like you know nothing."
(2) When Browne said that the people he was
talking to had said they'd heard that Curtis’s tongue cut out, Roll
laughed and said, "I guarantee you he didn't feel [anything]."
(3) Gary Lee Roll said that he'd heard people
talk about the Scheper killings, too, adding: "I just say, Who? I
don't know 'em. I don't watch TV or read the newspaper."
(4) Roll said: "It didn't have to go down like
that if they weren't so [explicative] stupid. I couldn't believe it.
They tell me, he says, "I ain't gonna do [explicative]!" Bip! Boom!
No! No! No! Shut up, [explicative]! Shuts up. Crazy."
(5) Roll complained that when David Rhodes was
arrested for an unrelated burglary shortly after the murders, he had
called both Roll and Browne, which could have implicated them. He
said worried about Rhodes keeping quiet, but added: "There ain't no
way unless they just come right out and somebody says something,
they ain't never going to believe I was involved in [the killings]
because of my [broken] leg, besides that, I ain't ever going to say
(6) Browne talked about how he was questioned at
the time of the homicides by a Detective named Zeb Williams about
selling a .38 pistol to Randy Scheper, and Roll was pleased that
they incorrectly thought that particular gun might be the murder
weapon. He said: "Then they're figurin' out that that gun was the
gun that did it, cause it was a thirty-eight round . . and you know
that was police issue ammo I had."
(7) Roll added: "That's why I got rid of the ammo,
when I come back, too. I got rid of the ammo and gun and that badge."
(8) Browne said: "I couldn't believe that dumb [woman]
gonna let you in the house." Roll replied: "I'll tell you what, she
was stupid. [Explicative], they all were. They were just stupid. I
was settin there talkin to 'em, I said [explicative] . . . you know,
I figured they would go in there and they would tell . . ." Browne
interrupted him and said: "I looked straight in that side window and
seen Randy, he had an orange cup, like one of them soda cups." Roll
said: "He could've blown me away. I wouldn't even have seen him
because his room is so dark and at that time the light wasn't on,
and I was waitin' for, I knew cause you already told me right where
the bedroom was, where he was, so I knew he was back in there. Then
he just came walkin out of the room."
(9) Roll said: "I couldn't do much else you know
because they knew everybody. I figured they even knew me, because of
something that was said in there. I didn't, you know, we already, I
already said the way it was going to go down, the way, and then you
guys said, well, you know, what's got to be done, and I said, yeah,
well, you know, we already had all that, we knew we had to do
something like that. It don't, it don't bother me."
(10) Roll said: "We just missed, I guess, a lot
of money. He just bought that car for six or eight hundred dollars,
I forget what he told me, it's been a while." (This was a reference
to the fact that the Schepers had just bought a car the day before
the killing, thus spending most of the cash they kept in the house.)
After making the tape-recording, John Gregory
Browne asked his friend "Del Orfo" to hold onto the tape, with
instructions that if Browne ever turned up dead, "Orfo" was to turn
it over to the police. "Orfo" held onto it for nine days, but
finally felt he had to turn it over to the police and did so on
November 3, 1992.
On November 4, 1992, the police executed a search
warrant on Gary Lee Roll's house on Big Bend Road (Highway 177).
They not only managed to arrest him without anyone being injured,
but they also found several key pieces of evidence:
(1) They found Cape Girardeau Police Department
Badge #51 in his gun cabinet. A Cape Girardeau police officer had
lost that badge years before while pushing cars out of the snow in
(2) They found the Smith & Wesson revolver that
had fired both the shot into Randy's head and the shot into the wall.
The gun was buried in the woods behind Gary Lee Roll's house. (Roll's
16-year-old son admitted that his father -- Gary Lee Roll -- had
given him the wrapped up package in the days following the murders,
and had ordered him to bury it.)
(3) A firearms expert from the Highway Patrol
Crime Laboratory confirmed that the gun buried behind Gary Lee
Roll's house was the one gun in the world that could have fired the
bullet in Randy Scheper's head, and the bullet in the wall of the
(4) Also buried with the gun they found a Gerber
gray-handled double-edged knife with a blade 6 and 7/8 inches long.
The pathologist who did the autopsies noted that the knife was
consistent with being the knife that stabbed Curtis Scheper and
(5) Also buried with the knife they found a box
of ammunition of the same caliber that had killed Randy Scheper.
(6) In the sights of the Smith & Wesson revolver
the police found a hair that was stuck in the sights. An expert at
the Highway Patrol Crime Lab examined the hair and compared it to
the hair sample taken from Sherry Scheper's body, concluding that it
was consistent with being one of Sherry Scheper's hairs.
After he was arrested, Gary Lee Roll told
officers that he didn't know the Schepers, knew nothing about their
deaths, and claimed that the .22 pistols in his house were the only
handguns he'd owned in ten years.
A gun permit on file at the Sheriff’s Department
showed that Gary Lee Roll had owned the murder weapon since 1977.
The pathologist confirmed that 17-year-old Randy
Scheper died from the one gunshot wound to the head.
Curtis Scheper, 22, died from the three stab
wounds to his back. His death would not have been immediate. He bled
Sherry Scheper, 47, died from the multiple blows
to her head that crushed her skull. She had also been stabbed three
times in the back and once in the chest.
Randy's body was found in his bedroom. Sherry's
body was found in the dining room at the foot of the steps to her
Curtis's body, though, was found on his
neighbor's front porch. His blood trail told the story of the last
minutes of his life.
After the robbers left, Curtis got up from where
he lay on the living room floor and stumbled down the hallway to his
brother’s bedroom, where he found Randy lying dead on the floor.
Curtis then went to his mother’s body at the foot of the stairs and
knelt next to her for a while. Finally, he moved to the telephone
and tried to call for help, but the phone lines had been cut. He
finally staggered outside and made his way, falling at least twice,
to his neighbors’ house, an elderly couple who had always been nice
to him. He pounded on their door so hard it broke the glass of their
The elderly man later recalled that at 5:00 to
5:30 a.m. on August 9, 1992, he had been awakened by a noise like
somebody knocking on the door. He went to the door -- the wrong door
-- the back door -- and found nobody there. He went back to bed.
Meanwhile, Curtis Scheper bled to death on the
couple’s front porch.
John Gregory Browne, 21, the lookout who had
waited outside while the robbery took place, pled guilty to one
count of second degree murder under the felony murder doctrine,
under which he was responsible for murder even though he thought he
was only participating in a robbery. Circuit Judge William L. Syler,
Jr. sentenced him to life in prison on November 15, 1993.
David Wayne Rhodes, 18, who went inside and held
the family at gunpoint as Roll killed them one by one, pled guilty
to three counts of second degree murder. Circuit Judge William L.
Syer, Jr. sentenced him to three life sentences, to run
Gary Lee Roll, 41, originally took his case to
jury trial, but after the jury was selected, opening statements
given, and the first witness called, he changed his plea to guilty.
Prosecuting Attorney Morley Swingle refused to waive and death
penalty, and requested a sentencing hearing, at which both Rhodes
and Browne testified and the tape-recording of Roll cold-bloodedly
discussing the killings was played for the judge.
On November 16, 1993, Boone County Circuit Judge
Frank Conley imposed the death penalty upon Gary Lee Roll. Roll was
executed by lethal injection on August 30, 2000.
Application for Clemency to
Missouri Governor Carnahan
On November 16, 1993, Gary Lee Roll was sentenced
to death on each of three counts of murder in the first degree. He
is scheduled for execution at 12:01 a.m. on August 30, 2000.
I was appointed by Judge Sachs to represent Mr.
Roll on a federal habeas corpus petition challenging those sentences
on December 5, 1997. Based on my work on that case and conversations
with Mr. Roll, I would respectfully suggest four areas that appear
to be particularly appropriate for consideration in connection with
Those are: (1) Mr. Roll was under the influence
of voluntarily ingested alcohol and drugs at the time of the crimes,
(2) his experimentation with, and eventual addiction to, those drugs
resulted, at least part, from sustaining sufficiently severe nerve
damage while having teeth removed in the Armed Forces that he became
entitled to a 50% service connected disability, followed by at least
two subsequent Veteran’s Administration Hospital surgeries that only
exacerbated the problem, (3) the private counsel who represented Mr.
Roll at trial, during the guilty pleas and at sentencing did not act
in Mr. Roll’s best interest and exercised what could most charitably
be called poor judgment, and (4) Mr. Roll is an honorably discharged
veteran with no violent or criminal history prior to these crimes.
The sentencing court indicated a belief that it
could not consider the first factor in mitigation, and did not
specifically address the second factor apart from its comments
regarding the first.
While the sentencing court did address some
aspects of the third factor in connection with an argument that
counsel rendered ineffective assistance under a constitutional
standard, it did not address concerns, expressed below, that counsel
simply used poor judgment and implemented ill-conceived strategies.
The fourth factor was considered as mitigating by the sentencing
The fact of Mr. Roll’s voluntary intoxication at
the time of the crimes is not questioned. The Missouri Supreme
Court’s conclusion that he had ingested “alcohol, marijuana and four
to six hits of LSD” is a fair reading of the transcript.
such voluntary intoxication is not a legal defense under Missouri
law, it is an appropriate consideration in mitigation. Such
consideration is particularly appropriate in Mr. Roll’s case when
viewed in the context of how he was drawn to illegal drugs.
Mr. Roll’s medical history is described in some
detail in Roll v. United States, 548 F.Supp. 97 (E.D.Mo. 1982) (attached
hereto as Exhibit A), which involved a Federal Tort Claims Act claim
by Mr. Roll and his wife arising from a failure to provide informed
consent prior to a surgery performed at a Veteran’s Administration
That decision is important both because it documents the
nature of the problem, and that it was a real problem that Mr. Roll
had been attempting to address for 15 years prior to these crimes,
and not just something he dreamed up as a defense or factor in
mitigation of these crimes. The following narrative is a summary of
Judge Nangle’s Findings of Fact therein.
Several of Mr. Roll’s teeth were pulled while he
was in the Armed Forces in 1974. The procedure resulted in damage to
the nerves of his jaw, “which has caused him a great deal of pain
subsequently.” He was therefore honorably discharged on September 7,
1974 and awarded a 50% service connected disability.
By December of 1976, the pain “had reached such
intensity that he was unable to maintain a normal social life.” As
of that time, the pain, burning and numbing sensation was limited to
his lower lip. On June 24 1977, he underwent a right mental
neurectomy, which is a surgical procedure to remove a portion of the
nerve that supplies feeling to the entire face. 548 F.Supp. at
By August of 1977, Mr. Roll was taking decadron,
delmane and demorol to alleviate pain radiating up and around his
ear. Neurological examination “indicated that the new pain might be
associated with the earlier neurectomy.”
Over the next two weeks he
experienced increasing right and left jaw pain, despite his doctor’s
attempt to provide relief through various drugs, pain medication and
steroid injections. Mr. Roll therefore underwent a bilateral mental
neurectomy, in the hopes numbing his lower lip.
Unfortunately, the surgery did not have the
desired effect, and by the time of trial Mr. Roll was experiencing
“chronic pain in his chin, lip, high neck, jaw, gums and anterior
part of his lower jaw.” The severity of the pain had a substantial
impact on the lives of Mr. and Mrs. Roll, preventing him from
performing work that he might otherwise perform and limiting their
social life. 548 F.Supp. at 99-100.
Over the next 10 years the VA Hospital amassed
hundreds of pages of records reflecting the prescription and
administration of various combinations of narcotic analgesics and
anti-anxiety agents, none of which were really effective. Mr. Roll
became concerned about addiction to these drugs and, through an in-patient
hospital stay, was able to get off of them in early 1992.
Then, in March of 1992, Mr. Roll was working on
the roof of his house and fell, breaking and splitting through the
joint in his ankle where the long bones come together.
for total healing was not good at the time, and the injury has in
fact never healed. Mr. Roll’s cane was recently taken from him and,
as of yesterday, August 21, 2000, his ankle was swollen to
approximately three times normal size.
Immediately following the leg injury, Mr. Roll
was placed back on narcotic pain medications, and began a downward
spiral. The pain and resulting depression that had been haunting him
for the last seventeen years, coupled with the new pain from the leg
injury, became unbearable. He began using marijuana and LSD, and
found that those drugs did provide some level of relief.
Thus, Mr. Roll came to the night of November 9,
1992, under the influence of alcohol, marijuana and four to six hits
of LSD. As noted above, this voluntary intoxication does not relieve
him of legal responsibility.
He was, however, undoubtedly suffering
from substantially impaired judgment, and that factor, along with an
understanding of how he came to be in that position, certainly merit
consideration of a lessening of moral responsibility, warranting
commutation of his sentences.
This conclusion is reinforced by his lack of
criminal or violent record, indicating that he is not a career
criminal or a criminal on a track of increasingly serious offenses.
He is a man who exercised extremely poor judgment under extreme
circumstances, culminating from years of pain, on a single night. He
thereby put himself in a position to commit the crimes to which he
ultimately pled guilty.
Perhaps the most disturbing aspect of this case
is the treatment Mr. Roll received from his privately retained
lawyer.(1) The Federal District Court was “not comfortable with
concluding that trial counsel had satisfied his constitutional
responsibilities” to Mr. Roll with respect to the presentation
evidence regarding Mr. Roll’s mental condition at sentencing, but
concluded that there was no prejudice because the sentencing judge
ultimately heard such testimony at the post-conviction hearing and
was “distinctly unimpressed.”
It is worthy of note, however, that by
the time the sentencing judge heard the testimony he had already
stated that he did not believe the law allowed him to consider the
commission of one crime (i.e. taking illegal drugs) in mitigation of
another, and had already imposed, and committed himself to, death
sentences. More importantly, the standard for constitutional
ineffective assistance of counsel is much higher than simple bad
The record is replete with examples. The general
tenor of Counsel’s representation, and his desire to cover and pad
his own backside rather than honor his explicit ethical obligation
to zealously represent his client, are reflected in a “Statement of
Defendant on Eve of Trial” (attached hereto as Exhibit B) that he
required Mr. Roll to sign.
A few of the more onerous paragraphs
recite that Mr. Roll was totally sane (in direct conflict with
potential defenses or mitigation evidence), that Mr. Roll was
entirely satisfied with Counsel’s performance but wanted him to
withdraw at the conclusion of the case and seek to have a Public
Defender appointed, that he irrevocably assigned all of his assets
to Counsel, and, most egregiously, that he permitted his attorney to
make the entire statement public, thereby waiving the attorney
Counsel did not seek any form of mental
evaluation, with respect to defenses or mitigation, but put in
writing to Mr. Roll’s brother that he was likely a “zombie” or “time
bomb” at the time of the crimes. Counsel testified that he had
consulted with Dr. Agnew, one of Mr. Roll’s treating physicians at
the VA, regarding legal sanity issues prior to trial, but Dr. Agnew
testified at the post-conviction hearing that no such conversations
Despite reportedly coming to town ready for trial
on August 29, and being surprised by his client’s decision to plead
guilty, Counsel clearly was not ready for trial. When an attempt to
enter a guilty plea on the morning of August 30 failed, Counsel did
not ask questions on voir dire, did not make an opening statement,
and did not cross examine the State’s first witness.(3)
Over the course of my representation of Mr. Roll,
I have probably discussed his case with fifteen or twenty criminal
Every single one of them has looked on in
disbelief when told that counsel advised or allowed his client to
waive a jury as to both trial and sentencing, and plead straight up
to three counts of first degree murder, knowing that the prosecution
is continuing to seek the death penalty.
While the client clearly
has the right to make the decision and enter into a guilty plea,
there is no reason to waive the jury as to sentencing.
If even one
member of the twelve-person jury refuses to recommend the death
penalty, the court cannot impose it. In a jury-sentenced case, a
defendant has twelve chances to avoid the death penalty. In a judge-sentence
case, a defendant has one chance to avoid the death penalty.
The only relief Mr. Roll seeks is to have his
sentences commuted to life in prison, with the possibility of
probation or parole. In consideration of the foregoing, the
undersigned respectfully submits that such relief is mete and proper.
WITHERS, BRANT, IGOE & MULLENNIX, P.C.
Michael S. Shipley #33249
Two South Main Street
Liberty, MO 64068
(816) 781-4788 Telephone
(816) 792-2807 Facsimile ATTORNEY FOR GARY LEE ROLL
Missouri Clemency Applications
Gary Roll (Executed 8/30/00)
Gary Roll never denied his part in the killings
in 1992 of Randy Scheper, an alleged drug dealer, his mother, Sherry,
and brother, Curtis.
His trial counsel conducted no pretrial
investigation and urged his client to waive his right to be tried
before a jury and plead guilty, with false assurances he would
receive a life sentence. It was clear his attorney was not ready for
trial when he did not ask questions on voir dire, did not make an
opening statement, and did not cross examine the state’s first
Counsel did not seek any form of mental
evaluation and failed to present evidence to the judge that showed
that Roll’s drug addiction stemmed from a botched oral surgery by
military doctors in 1974. Roll was subsequently honorably discharged
with a 50 percent service disability.
Two other surgeries in VA
hospitals failed to alleviate the excruciating pain. For 17 years
Roll was prescribed various narcotic analgesics in hopes of finding
In 1992 Roll sustained a serious leg injury which
added to the pain. It was then that Roll turned to "street" drugs to
find relief. It was while under the influence of alcohol, marijuana
and LSD that Roll, who had no prior history of crime, committed the
Gary Lee Roll (MO)
Innercity News Online
August 30, 2000
Gary Roll has suffered from drug addiction since
he underwent dental surgery in the military more than thirty years
ago. The procedure was botched, and it left Gary in chronic,
After unsuccessfully seeking relief from the
Veterans Administration for years, Gary turned to illegal drugs to
escape the pain. Unfortunately, the drugs that dulled Gary's pain,
also landed him on death row. Though he maintains he was high and
does not remember what happened on the night of August 9, 1992, Gary
was convicted of murdering drug dealer Randy Scheper, Sherry Scheper,
and Curtis Scheper.
The judge sentenced Gary to death, citing his
belief that the murder was committed in the commission of another
felony. He did not consider Gary's drug addiction or his depression
as mitigating factors during sentencing. The fact that Gary had
never before been convicted of any crime was the lone mitigating
factor the judge weighed against the aggravators.
Mike Shipley, Gary's appellate attorney, intends
to continue to appeal the judge's refusal to consider his client's
altered mental state at the time of the crime. Gary's drug and
depression problems are long-standing and have profoundly influenced
his mental capacity.
A neuro-psychologist, who testified at a
hearing on direct-appeal, confirmed Gary's altered mental state, and
also pointed out organic brain damage that may have affected his
decision-making ability. Gary's trial counsel did not object to the
omission of this evidence, making it much harder to raise
Please contact Governor Carnahan and urge him to
commute Gary's sentence, or at least to grant him a stay while the
mitigating factors in his case are given proper consideration.
Three condemned prisoners were put to
death today in a rare triple execution nationwide
Aug. 30, 2000
Missouri carried out the first execution today at
12:07 a.m. CT when Gary Lee Roll was put to death by lethal
injection. Roll, 47, was executed for killing three members of a
Cape Girardeau family during a robbery at their home in 1992. He
became the third Missouri inmate put to death this year and the 44th
since the death penalty was reinstated in 1989.
Atypical Death Row Resident
Roll didn’t fit the profile of a condemned killer.
Unlike many on death row, he didn’t grow up facing physical,
emotional, mental or sexual abuse. He was from a respected, hard
working Cape Girardeau family. His brother became a top FBI agent in
Kansas City. Death penalty opponents often point out that many on
death row are borderline mentally retarded.
Roll had an IQ of 125,
well above average. And he wasn’t a drifter — he was a Vietnam
veteran who dropped out of college 10 hours short of graduation to
help run the family heating and air conditioning business.
As he awaited death, Roll accepted his fate and apologized to his family
and the relatives of his three victims, Sherry Scheper and her sons
Randy and Curtis. “I failed my family,” Roll said in his final
statement. He also expressed his remorse to the Scheper family.
Drug Path to Death Row
In an interview the day before his execution,
Roll said it was a single, painful event in 1973 that turned his
life down the wrong path. Roll had dropped out of Southeast Missouri
State University to volunteer for the Army at the height of the
Stationed in Germany, Roll suffered from six impacted
teeth. An Army oral surgeon extracted all six at once, in the
process exposing a nerve in Roll’s lower mouth. The excruciating
pain never went away, Roll said. “It hurts to talk about it,” Roll
said. “It affected my life so much. It changed me.” Roll first
sought help through conventional means, even suing the Veteran’s
Administration when officials there wouldn’t provide the medication
he felt he needed.
Eventually, Roll said he would do anything to
relieve the pain, including experimenting with illegal drugs. In
1991, his drug use was a factor in his wife’s decision to divorce
him. Through two teenage friends of his son, Roll began to use LSD.
Roll said his need to relieve his pain through LSD eventually led
him to murder during his fateful robbery-gone-bad at the Scheper
Amnesty International Holds Vigil for Executed
By Edward S. Jenkins -
September 5, 2000
The state of Missouri executed Gary Lee Roll by
lethal injection in Potosi at 12:07 a.m. Wednesday. It was
Missouri’s third execution this year.
In 1992, Roll and two accomplices under the
influences of alcohol, marijuana and LSD broke into the Cape
Girardeau home of Sherry Scheper and her two sons, ages 17 and 22,
in order to steal money and drugs.
In the process, he beat Sherry
Scheper to death with his gun and shot the younger son while one of
his accomplices stabbed the other son to death. Roll got away with
over $200 and some marijuana.
Despite having his son bury the murder
weapons, he was arrested after one of his accomplices recorded a
conversation with Roll for the police. Roll eventually pleaded
guilty to all three murders and hoped the victims’ family would
Roll graduated from Cape Girardeau Central High
School in 1969 along with Rush Limbaugh. He then attended Southeast
Missouri State University until joining the Army just before
Roll was introduced to continuous pain in his gums after
a dental surgery in the military. He became hooked on LSD to numb
the pain when the government refused him medication.
Truman’s Amnesty International group held a vigil for Roll’s victims,
Sherry, Randy and Curtis Scheper, and also for Roll. Twelve students
walked from campus to the county courthouse steps where they had a
moment of silence for the victims.
Amnesty held the vigil to express their
dissatisfaction with the current system. “Even supporters of the
death penalty, like Illinois governor George Ryan, realize there are
serious biases against the poor and minorities,”
Jesse Jokerst, who
attended the vigil, said. “If the death penalty cannot be abolished,
at least an immediate moratorium should be in place to reevaluate
its role in our judicial system.” Amnesty International plans to
hold a second vigil next Tuesday night when another Missouri man is
to be executed.
Michael Bowersox, Appellee
United States Court of Appeals,
Submitted April 19, 1999.
Filed May 24, 1999.
Rehearing and Rehearing En Banc Denied June 25, 1999
Chief Judge, FAGG, Circuit Judge, and BOGUE,
FAGG, Circuit Judge.
Roll, a Missouri
death row prisoner, appeals the district
court's denial of his 28 U.S.C. § 2254
habeas petition. We affirm.
taking drugs and drinking alcohol,
Roll and two other
men, David Rhodes and John Browne, went to
the home of a Missouri drug dealer, Randy
Scheper, to rob him. When Randy's mother
answered the door, Roll
flashed a badge, stated he was a police
officer, and demanded entry.
fatally shot Randy in the head and beat
Randy's mother to death with his gun. Either
alone or with one of his cohorts,
Roll also fatally
stabbed Randy's brother.
Roll and his
associates left with about $215 in cash and
some marijuana. Roll
then went home and cleaned the blood off his
gun, knife, and clothing. He wrapped the
murder weapons in a package and his son
buried the package in the woods behind
following weeks, Browne began to fear for
his safety and, in an effort to protect
himself, used a tape recorder while talking
with Roll about the
murders. During a taped conversation,
Roll admitted he
killed the Schepers, laughed about it, and
specifically said he decided to kill them
once he realized they recognized him.
complained that he and his pals had just
missed getting a lot more money by not
committing the murders a day sooner, said no
one would suspect him because of his broken
leg, and acknowledged he disposed of the
murder weapons right after the murders to
hide his involvement. Browne gave the tape
to a friend for safekeeping, and his friend
turned the tape over to police.
taped confession in the hands of the
was arrested and tried in Missouri state
court on three counts of first-degree murder.
On the morning of the trial,
Roll attempted to
plead guilty, but the court rejected the
plea after Roll
testified he was using lysergic acid (LSD)
and prescription drugs at the time of the
murder and could not remember firing the gun.
the first day of trial,
Roll again sought to plead guilty.
The court revisited the drug issue and
guilty plea after Roll
said that there was no doubt in his mind
that he shot Randy and hit Randy's mother in
the head with a pistol and that he had
testified falsely at the first plea hearing
when he said he could not recall certain
events about the offense.
sentencing hearing, the court heard evidence
about Roll's mental
state from lay witnesses and through
presentation of Roll's
medical records. Stating it had reviewed the
evidence presented at the trial before the
guilty plea and the hearings, the court
concluded there were both aggravating and
aggravating factors, the court found each
murder was committed while
Roll was engaged in another homicide,
Roll committed the
murders during a robbery, and the murders
were committed to conceal a felony drug
offense by eliminating witnesses to the drug
theft. As a mitigating factor, the court
found Roll had no
prior record. The court then said:
considered the aggravating circumstances,
I've considered the mitigating circumstances,
I've considered all of the evidence which
was presented at the hearing.... I think in
part there is an attempt to excuse whatever
occurred as a result of the use of drugs,
the use of lysergic acid, but on the other
hand the [c]ourt and the law cannot
countenance the commission of one offense as
an excuse for the commission of another
offense, and I cannot myself in this case do
imposing a death sentence, the court granted
asking, "[I]s there any legal reason why I
should not at this time pronounce judgment
and sentence?" Roll
made no objections.
Roll argued his
trial attorney was ineffective at sentencing
in failing to establish
Roll's mental condition at the time
of the murders. In support of his argument,
three experts at an evidentiary hearing.
psychologist who had treated
Roll for three
years before the murders for chronic pain
and depression testified
Roll had no history of any psychotic
symptoms and every time he saw
five days before the murders and fifty-four
days after them, Roll
was sane and never revealed any signs of
psychosis from drugs or mental disease.
psychologist who evaluated
Roll two years after the murders
suffers from neurological impairments,
including organic brain dysfunction, and
Roll was not in
control of himself at the time of his crimes.
A pharmacologist who examined
Roll around the
same time also testified about
drug history and the effects and behaviors
caused by LSD, including that
Roll's LSD use made
him psychotic on the night of the murders.
postconviction court, which had also
presided over Roll's
trial, plea, and sentencing, rejected the
hindsight opinion testimony favorable to
unpersuasive. The court was not swayed given
the contrary testimony of
Roll's treating physician and
during the plea hearing and on Browne's tape
recording, which caught
Roll "talking cold-bloodedly about
the murders" and showed
Roll made a calculated decision to
kill his victims. The court denied
consolidated appeal, the Missouri Supreme
Court affirmed Roll's
conviction and sentence as well as the trial
court's denial of postconviction relief. See
State v. Roll, 942
S.W.2d 370(Mo.), cert. denied, --- U.S.
----, 118 S.Ct. 378, 139 L.Ed.2d 295 (1997).
Roll argued the
judge's comments at sentencing showed the
judge improperly refused to consider
mitigating evidence of
Roll's drug use at the time of the
murders. Because Roll
had not objected at sentencing, the court
reviewed the argument only for plain error
and found there was none. See id. at 373-74.
observed that under Missouri law, drug abuse
may or may not be considered a mitigating
circumstance, depending on the facts, and in
Roll's case, the
trial judge's comments were " 'merely
reflections on how he weighed the evidence
of [Roll's] drug
abuse in determining mitigating
circumstances.' " Id. at 374 (quoting State
v. Hunter, 840 S.W.2d 850, 868 (Mo.1992)).
noted there was substantial evidence that
Roll's drug use was
not a mitigating factor. Although
Roll had referred
to his drug use during his first,
unsuccessful attempt to plead guilty,
Roll made almost no
mention of drug use in recounting his
actions on the night of the murders during
the second, successful guilty plea hearing
and during his testimony at the sentencing
hearing. See id.
As for the
ineffective assistance claim, the court
reviewed the expert testimony and concluded
the facts did not suggest mental instability
that required further investigation or a
mental evaluation, so Roll
failed to show counsel did not adequately
investigate mental disease or defect issues.
See id. at 377-78.
obtained no relief in the state court system,
Roll filed a habeas
petition in federal district court. Again,
Roll asserted the
sentencing court violated his Eighth and
Fourteenth Amendment rights by failing to
consider his drug use as potentially
mitigating evidence at sentencing. See
Eddings v. Oklahoma, 455 U.S. 104, 114-15,
102 S.Ct. 869, 71 L.Ed.2d 1 (1982).
Roll also argued
his trial counsel was ineffective at
sentencing in failing adequately to
mental condition at the time of the offense.
The district court denied relief and granted
Roll permission to
raise those two issues on appeal. See 28
U.S.C. § 2253 (Supp. II 1996) (certificate
of appealability). We turn to them now.
respect to his claim that the sentencing
court failed to consider mitigating evidence,
Roll argues only
that the district court applied the wrong
standard of review. The district court
reviewed the claim for plain error because
the Missouri Supreme Court had reviewed the
claim for plain error.
Roll contends the Missouri Supreme
Court should not have limited review to
plain error because he did not need to
object at sentencing to preserve the issue
for appeal. We disagree.
defendant fails to object to sentencing
infirmities during allocution, Missouri
courts consistently hold sentencing issues
are procedurally barred and thus are
reviewed only for plain error. See State v.
Olney, 954 S.W.2d 698, 700 (Mo.Ct.App.1997);
State v. Hunter, 840 S.W.2d 850, 867-68
(Mo.1992); see also Williams v. Lockhart,
873 F.2d 1129, 1131-32 (8th Cir.1989).
Roll also contends
the state court's plain error review avoids
procedural bar and permits full-blown
federal habeas review on the merits. When a
state court reviews a petitioner's claim
under a plain-error standard, in federal
habeas proceedings we either review the
claim for plain error or view the claim as
procedurally barred and decline to consider
it at all absent a showing of cause and
prejudice. See Hunter v. Bowersox, 172 F.3d
1016, 1023-1024 (8th Cir.1999); Sweet v.
Delo, 125 F.3d 1144, 1152 (8th Cir.1997),
cert. denied, --- U.S. ----, 118 S.Ct. 1197,
140 L.Ed.2d 326 (1998); Mack v. Caspari, 92
F.3d 637, 641 n. 6 (8th Cir.1996). Thus, the
district court did not misstep in reviewing
Roll's claim for
with the district court that there was no
plain error. Like the district court, we are
sentence would be the same if we remanded
for reconsideration in light of his drug use
at the time of the murders. The sentencing
court heard evidence of
Roll's drug use before it sentenced
Roll to death, and
the court later discounted as unpersuasive
additional evidence about the effects of
Roll's drug use
offered at the postconviction stage. We thus
see no manifest injustice. See Roberts v.
Bowersox, 137 F.3d 1062, 1064 (8th
Cir.1998), cert. denied, --- U.S. ----, 119
S.Ct. 808, 142 L.Ed.2d 668 (1999). For the
same reason, even if we considered
Roll's claim on the
merits, as he wants, he would not prevail
because the alleged error did not harm him.
See Hitchcock v. Dugger, 481 U.S. 393, 399,
107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) (Eddings
violation may be harmless error); Sweet, 125
F.3d at 1158 (same).
believe there was no error at all--the
sentencing court did not "refuse to consider,
as a matter of law, any relevant mitigating
evidence." Eddings, 455 U.S. at 114 (italics
omitted). Although the sentencer cannot
exclude relevant mitigating evidence from
consideration, the sentencer may decide what
weight the evidence warrants. See id. at
Missouri Supreme Court, we conclude "the
trial judge's comments were 'merely
reflections on how he weighed the evidence
of [Roll's] drug
abuse in determining mitigating
circumstances.' " Roll,
942 S.W.2d at 374. Roll's
sentencing judge did not think he lacked
discretion to mitigate for
Roll's drug abuse, but rather
disbelieved the evidence that drug abuse
ability to act rationally and thus minimized
his moral culpability.
heard the tape recording before sentencing
Roll, and the
judge's comments about the tape show the
judge thought that at the time of the crime,
Roll was in command
of himself rather than in a drug-induced fog.
Substantial evidence introduced before
sentencing showed Roll's
planning, premeditation, calculated decision
to kill, and consciousness of guilt. Because
the judge believed the drug intoxication
evidence was unpersuasive in light of other
forceful evidence, it is clear the judge
simply gave the drug intoxication evidence
very little weight after finding "it wanting
as a matter of fact." Eddings, 455 U.S. at
As for his
ineffective assistance claim,
Roll asserts the
district court erroneously concluded he was
not prejudiced by trial counsel's failure to
investigate and establish at sentencing
condition at the time of the crime. We
failed to show the allegedly deficient
performance prejudiced him. See Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).
As we have
already explained, the sentencing court
heard all the postconviction testimony and
disbelieved the testimony favorable to
Roll because the
testimony contradicted other compelling
evidence, including Roll's
Roll's taped confession shows his
memory of the murders, as well as motive,
deliberation, calculation, and consciousness
of guilt at the time of the crime.
the evidence that could have been presented
at trial or at sentencing was later
presented in postconviction proceedings and
was vigorously rejected by the sentencing
court, presentation of the postconviction
evidence earlier at trial or sentencing
would not have had a likely effect on
See Guinan v. Armontrout, 909 F.2d 1224,
1229-30 (8th Cir.1990).
district court observed,
Roll's rational, calculated behavior
at the time of his crime distinguishes his
case from others in which presentation of
mitigating mental capacity evidence might
have changed the sentencing result. See, e
.g., Kenley v. Armontrout, 937 F.2d 1298
Roll has not shown
prejudice, his ineffective assistance claim
fails. We also observe that, unlike the
district court, we agree with the Missouri
Supreme Court that Roll's
attorney adequately investigated mental
disease or defect issues, and thus his
performance was not deficient. See
Roll, 942 S.W.2d at
carefully considered all of
we affirm the district court.