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Gary Lee ROLL





Classification: Murderer
Characteristics: Robbery - Drugs
Number of victims: 3
Date of murder: August 9, 1992
Date of birth: November 22, 1952
Victims profile: Sherry Scheper, 47; Randy Scheper, 17, and Curtis Scheper, 22
Method of murder: Shooting / Beating with gun / Stabbing with knife
Location: Cape Girardeau County, Missouri, USA
Status: Executed by lethal injection in Missouri on August 30, 2000

photo gallery


clemency petition



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.

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 in 1992.

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 1993.

His attorneys 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.

Roll was 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.


State of Missouri v. Gary L. Roll

942 S.W.2d 370 (Mo.banc)

Case Facts:

After ingesting 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 Release

July 18, 2000 - State Supreme Court Sets Aug. 30 Execution Date.

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 Cape Girardeau.

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.

Roll 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 brother, Curtis.

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.

Roll said 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.


Abolish Archives

(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.

Evidence 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 of Drug-Dealing

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 immediately.

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 his house.

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 of 1992.

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 friends.

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 Scheper.

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 wires.

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 them now!"

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 gunpoint.

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 joined them.

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 sink.

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 nothing."

(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 Capaha Park.

(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 Scheper home.

(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 Sherry Scheper.

(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 to death.

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 bedroom.

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 storm door.

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 consecutively.

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 this Application.

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 court.

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.

Although 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 Hospital.

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 98-99.

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.

The prognosis 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 lawyering.

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 client privilege.

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 ever occurred.

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 law practitioners.

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.

Respectfully Submitted,
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 witness.

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 relief.

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 killings.


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, excruciating pain.

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 subsequently.

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 Vietnam War.

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 household.


Amnesty International Holds Vigil for Executed Man

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 forgive him.

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 graduation.

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.

Last Tuesday 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.



177 F.3d 697

Gary Lee Roll, Appellant,
Michael Bowersox, Appellee

United States Court of Appeals, Eighth Circuit.

Submitted April 19, 1999.
Filed May 24, 1999.
Rehearing and Rehearing En Banc Denied June 25, 1999

Before: BOWMAN,* Chief Judge, FAGG, Circuit Judge, and BOGUE,** District Judge.

FAGG, Circuit Judge.

Gary Lee Roll, a Missouri death row prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 habeas petition. We affirm.

After 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.

Once inside, Roll 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 Roll's home.

In the 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.

Roll also 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.

With his taped confession in the hands of the authorities, Roll 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.

Following the first day of trial, Roll again sought to plead guilty. The court revisited the drug issue and accepted Roll's 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.

At a 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 mitigating circumstances.

As 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:

I have 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 that.

Before imposing a death sentence, the court granted Roll allocution, asking, "[I]s there any legal reason why I should not at this time pronounce judgment and sentence?" Roll made no objections.

In state postconviction proceedings, 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, Roll presented three experts at an evidentiary hearing.

A 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 Roll, including 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.

A clinical psychologist who evaluated Roll two years after the murders testified Roll 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 Roll's prescription 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.

The postconviction court, which had also presided over Roll's trial, plea, and sentencing, rejected the hindsight opinion testimony favorable to Roll as unpersuasive. The court was not swayed given the contrary testimony of Roll's treating physician and Roll's statements 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 postconviction relief.

In a 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.

The court 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)).

The court 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.

Having 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 establish Roll's 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.

With 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.

When a 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 plain error.

We agree with the district court that there was no plain error. Like the district court, we are convinced Roll's 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).

Indeed, we 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 114-15.

Like the 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 impaired Roll's ability to act rationally and thus minimized his moral culpability.

The judge 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 113.

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 Roll's mental condition at the time of the crime. We disagree. Roll 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 tape-recorded statements. 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.

Because 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 Roll's sentence. See Guinan v. Armontrout, 909 F.2d 1224, 1229-30 (8th Cir.1990).

As the 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 (8th Cir.1991).

Because 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 377.

Having carefully considered all of Roll's arguments, we affirm the district court.



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