Smulls and Norman Brown followed another customer into a jewelry store
owned by Stephen and Florence Honickman. Florence Honickman was unable
to show any jewelry at that time but suggested she might be able to help
Smulls and Brown returned to the store
that evening. After viewing some diamonds, Smulls and Brown went into a
hallway, purportedly to discuss the diamond prices. A short time later,
Florence looked up and saw Smulls aiming a pistol at her. She then ran
and hid behind a door. Smulls fired three shots at her, striking her arm
and side. Smulls then fired several shots at Stephen Honickman, who was
struck three times. Smulls and Brown stole jewelry worn by Florence and
other items in the store, then fled.
Stephen died from his wounds and
Florence suffered permanent injuries from the attack. Accomplice Brown
was convicted and is serving two life sentences without parole, plus 90
State v. Smulls, 71 S.W.3d 138 (Mo. 2002). (PCR)
Smulls v. Roper, 535 F.3d 853 (8th Cir. Mo. 2008). (Federal Habeas)
Fried chicken, steak, collard greens, macaroni and cheese, candied yams,
corn bread, chocolate cake, and cola.
State of Missouri v. Herbert L. Smulls
935 S.W.2d 9 (Mo.banc 1996)
Stephen and Florence Honickman owned and
operated a jewelry store. Typically, customers would make an appointment
to examine the jewelry for sale.
In early July 1991, a person
identifying himself as "Jeffrey Taylor" called the Honickmans and made
an appointment to buy a diamond. "Jeffrey Taylor" was later identified
as Herbert Smulls.
On July 22, 1991, Smulls and
Norman Brown went to the Honickmansí store. After viewing several
diamonds, Smulls and Brown left the store without making a purchase.
On the afternoon of
July 27, 1991, Smulls and Brown followed another customer into the
store. Florence Honickman was unable to show any jewelry at that time
but suggested she might be able to help them later.
Smulls and Brown
returned to the store that evening. After viewing some diamonds, Smulls
and Brown went into a hallway, purportedly to discuss the diamond prices.
A short time later, Florence looked up and saw Smulls aiming a pistol at
She then ran and hid
behind a door. Smulls fired three shots at her, striking her arm and
side. Smulls then fired several shots at Stephen Honickman, who was
struck three times. Smulls and Brown stole jewelry worn by Florence and
other items in the store.
After the two men left
the store, Florence contacted the police. Stephen died from his wounds
and Florence suffered permanent injuries from the attack.
Missouri executes killer after top court denies
January 30, 2014
(Reuters) - Missouri late on Wednesday executed a man
convicted of killing a jewelry store owner during a robbery after the
U.S. Supreme Court denied last-minute appeals that in part challenged
the drug used in the execution.
Herbert Smulls was pronounced dead at 10:20 p.m.
local time at a state prison in Bonne Terre after receiving a lethal
dose of pentobarbital, a fast-acting barbiturate, Missouri Department of
Corrections spokesman Mike O'Connell said.
Smulls, 56, did not make a final statement, but asked
which way he should look from the gurney to see his witnesses and nodded
at them before being declared dead nine minutes after being injected
with the drug, O'Connell said.
Smulls was the sixth person executed in the United
States in 2014 and the third in Missouri since November.
The U.S. Supreme Court on Wednesday lifted a
temporary stay of execution for Smulls, denying last-minute appeals. The
top court late Wednesday also vacated a stay from the Eighth Circuit
U.S. Court of Appeals that had prevented the execution.
Lawyers for Smulls filed another request with the
Supreme Court on Wednesday evening, but Missouri went ahead with the
execution before the midnight expiration of the state's death warrant.
O'Connell said the state followed procedures to
ensure it was clear of all legal impediments to the execution. Lawyers
for Smulls did not respond to requests for comment.
Smulls was convicted of shooting Stephen Honickman
while robbing his jewelry store in July 1991. Honickman's wife Florence,
who was also shot during the attack, sustained permanent injuries.
Smulls was originally scheduled to die after 12:01
a.m. Central Time on Wednesday and so had his final meal of fried
chicken, steak, collard greens, macaroni and cheese, candied yams, corn
bread, chocolate cake, and cola on Tuesday afternoon.
Lawyers for Smulls had sought to block his execution
on multiple grounds, arguing in part that the compound drug Missouri
used to kill him might not be as pure and as potent as it should be,
which could cause undue suffering.
Missouri and several other states have turned to compounding pharmacies,
which are not regulated by the U.S. Food and Drug Administration, to
prepare drugs for executions after an increasing number of
pharmaceutical manufacturers objected to their drugs being used in
The increasing use of in some cases untested
compounded drugs has revived the debate over the death penalty in the
In Oklahoma, an inmate said he felt burning through
his body when the drugs used to kill him were injected during an
execution in early January. Later in the month, an Ohio man gasped and
convulsed during his execution with a two-drug mix never before used in
the United States.
In the Smulls case, the Eighth Circuit U.S. Court of
Appeals found on Friday that his lawyers did not propose a feasible or
more humane alternative than pentobarbital or showed that Missouri
sought to cause him unnecessary pain by using the drug.
The Eighth Circuit had separately granted a stay
until the U.S. Supreme Court decided whether to hear the case.
The Supreme Court granted Smulls the temporary stay
late Tuesday, hours before his execution was to be carried out, to
consider his lawyer's arguments that prosecutors had improperly
eliminated a black woman as a possible juror, leaving him with an
all-white jury at trial.
On Wednesday afternoon, the Supreme Court vacated the
temporary stay and denied the request for a stay or to hear the appeal
on the jury selection issue.
(Reporting by Carey Gillam and Kevin Murphy in Kansas
City, Lawrence Hurley in Washington, and Heide Brandes in Oklahoma City;
Writing by David Bailey and Eric M. Johnson; Editing by Eric Walsh, John
Missouri executes man for jeweler's 1991 death
By Jim Salter - Stltoday.com
January 29, 2014
A Missouri who killed a jeweler during a 1991 robbery
was executed for the crime late Wednesday, marking the state's third
lethal injection in as many months.
Herbert Smulls was executed by a lethal injection of
pentobarbital at the state prison in Bonne Terre, and pronounced dead at
10:20 p.m. Smulls showed no outward signs of distress.
The 56-year-old had been convicted of killing Stephen
Honickman and badly injuring his wife, Florence, during a robbery at
their jewelry shop in suburban St. Louis on July 27, 1991.
Smulls' attorney filed numerous appeals challenging
the state's refusal to disclose where it obtained its execution drug.
The U.S. Supreme Court granted a stay late Tuesday, shortly before the
scheduled 12:01 a.m. execution, and eventually cleared all appeals on
Wednesday night _ even the one Smulls' attorney filed less than 30
minutes before he was pronounced dead; that denial of a stay of
execution came about 30 minutes after his death.
Defense attorneys argued that the state's refusal to
name the compounding pharmacy supplying the pentobarbital made it
impossible to know whether the drug could cause pain and suffering
during the execution. The state maintained that the company was part of
the execution team, so its name was protected from public disclosure.
Attorney General Chris Koster said in a statement
after the execution: "My thoughts and prayers are with Florence
Honickman and the family and friends of Stephen Honickman."
Prosecutors said the defense's arguments were simply
a smoke screen aimed at sparing a murderer's life.
"It was a horrific crime," St. Louis County
prosecutor Bob McCulloch said on Tuesday. "With all the other arguments
that the opponents of the death penalty are making, it's simply to try
to divert the attention from what this guy did, and why he deserves to
Smulls had already served time in prison for robbery
when he went to F&M Crown Jewels in Chesterfield and told the Honickmans,
who owned the store, that he wanted to buy a diamond for his fiancee.
But Smulls planned to rob the couple, and took 15-year-old Norman Brown
"They planned it out, including killing people,
whoever was there," McCulloch said.
Smulls began shooting inside the shop, and he and
Brown took rings and watches _ including those that Florence Honickman
was wearing. She was shot in the side and the arm, and feigned death
while lying in a pool of her own blood.
Florence Honickman identified the assailants. Brown
was convicted in 1993 of first-degree murder and other charges, and
sentenced to life without parole. Smulls got the death penalty.
Smulls' execution was the state's third since it
began using pentobarbital as its lethal injection drug.
Missouri and other states had used a three-drug
execution method for decades, but pharmaceutical companies stopped
selling the drugs in recent years for use in executions. Missouri
eventually switched to pentobarbital, which was used to execute serial
killer Joseph Paul Franklin in November and Allen Nicklasson in
December. Neither inmate showed outward signs of distress.
The state said it obtained its supply of the drug
from a compounding pharmacy, which custom-mix drugs for individual
clients. They are not subject to oversight by the U.S. Food and Drug
Administration, though they are regulated by states.
Smulls' attorney, Cheryl Pilate, said she and her
defense team used information obtained through open records requests and
publicly available documents to determine that state obtained its drugs
from The Apothecary Shoppe, a compounding pharmacy based in Tulsa, Okla.
In a statement, the company would neither confirm nor deny that it made
the Missouri drug.
Compounding pharmacies custom-mix drugs for
individual clients and are not subject to oversight by the U.S. Food and
Drug Administration, though they are regulated by states.
Pilate said the possibility that something could go
wrong persists, citing recent trouble with execution drugs in Ohio and
Oklahoma. She also said that previous testimony from a prison official
indicates Missouri stores the drug at room temperatures, which experts
believe could taint the drug, Pilate said, and potentially cause it to
Missouri Senate Democratic Leader Jolie Justus
introduced legislation this week that would create an 11-member
commission responsible for setting the state's execution procedure. She
said ongoing lawsuits and secrecy about the state's current lethal
injection method should drive a change in protocol.
Herbert L. Smulls
Stephen and Florence Honickman owned and operated a
jewelry business, F & M Crown Jewels in a basement level store below the
American Bank building. Typically, customers would make an appointment
to examine the jewelry for sale.
In early July 1991, a person identifying himself as
Jeffrey Taylor called the Honickmans and made an appointment to buy a
diamond. Jeffrey Taylor was later identified as Herbert L. Smulls.
On July 22, 1991, Smulls and Norman Brown went to the
Honickmans store. After viewing several diamonds, Smulls and Brown left
the store without making a purchase.
On the afternoon of July 27, 1991, Smulls and Norman
Brown followed another customer into the store. Florence Honickman was
unable to show them any jewelry at that time but suggested she might be
able to help them later.
Smulls and Brown returned to the store late that
evening. After viewing some diamonds, Smulls and Brown went into a
hallway, purportedly to discuss the diamond prices. A short time later,
Florence Honickman looked up and saw Smulls aiming a pistol at her.
Stephen Honickman pleaded with them not to shoot but
to take whatever they wanted from the store. Florence ran and hid behind
a door. Smulls fired three shots at her, striking her arm and side.
Stephen again yelled at them, "Stop shooting, you can have anything you
want!" Smulls then fired several shots at Stephen Honickman, who was
struck three times.
Smulls and Brown stole a bracelet, necklace and ring
worn by Florence Honickman as she pretended to be dead and other items
from under the glass counters in the store. Florence said she heard her
husband moaning but didn't move at first for fear they were still in the
After she was sure the two men left the store,
Florence Honickman called the police. Stephen Honickman was taken to the
hospital but died from his wounds around 1:00 am. Florence Honickman
suffered permanent injuries from the attack.
A short time after the robbery, police stopped Smulls
and Brown for speeding. While Smulls was standing at the rear of his
car, the police officer heard a radio broadcast describing the men who
robbed the Honickmans store. Smulls and Brown fit the descriptions. The
officer ordered Smulls to lie on the ground. Smulls then ran from his
car but was apprehended while hiding near a service road.
The police found jewelry and other stolen items from
the store in the car and in Brown's possession. The following morning
police found a pistol on the shoulder of the road on which Smulls drove
prior to being stopped for speeding. Bullets test fired from the pistol
matched bullets recovered from the store and Stephen Honickman.
Roy Post, a neighbor and business associate of
Stephen Honickman, said Stephen was president of STG Electrosystem, Inc.
and had worked on a military contract to design radar systems for
aircraft. The family had lived in Chesterfield for at least 17 years,
neighbors said. Honickman ran the jewelry store as a sideline, Post
said. He had set up the store for his wife and daughter, he said.
Police said they had no reports of earlier robberies.
The store had just opened in December of 1990. ''I never expected
anything like this to happen, '' Post said. ''It was out of the blue, a
hell of a shock.''
Smulls declined to take the stand at his retrial, and
he presented no testimony in his defense. The jury found Smulls guilty
as charged of first degree murder, first degree assault, first degree
robbery and two counts of armed criminal action.
In the punishment phase, the State presented evidence
of Smulls's eleven prior felony convictions for robbery, stealing and
operating a vehicle without the owner's consent, as well as evidence
that Smulls had committed a prior robbery in a manner similar to that
employed by him in the robbery and shooting of the Honickmans.
Smulls adduced testimony from a psychologist and from
several persons acquainted with or related to him in purported
mitigation of punishment. Thereafter, the jury returned a sentence of
death upon Smulls for his murder of Stephen Honickman, finding three
statutory aggravating circumstances as a basis for consideration of
capital punishment. Smulls was sentenced as a prior, persistent and
class X offender to five concurrent life terms for his remaining
Supreme Court of Missouri
Case Style: Herbert Smulls, Appellant v. State
of Missouri, Respondent.
Case Number: SC83179
Handdown Date: 02/26/2002
Appeal From: Circuit Court of St. Louis County,
Hon. Emmett O'Brien and Hon. James Hartenbach
Herbert Smulls shot Stephen and Florence Honickman
while robbing their St. Louis jewelry store in 1991. Stephen Honickman
died from his wounds, and Florence Honickman suffered permanent injuries
from the attack. At his first trial, the jury was unable to reach a
verdict on anything but robbery charges. At the second trial, the jury
convicted Smulls of first-degree murder, first-degree assault and armed
criminal action. This Court affirmed Smulls' convictions and sentence on
his direct appeal. Judge William Corrigan presided at both trials, as
well as the hearing of Smulls' Rule 29.15 post-conviction motion, which
was overruled. In 1996, this Court reversed the motion court's judgment
denying Smulls' post-conviction motion and remanded the case, holding
that Judge Corrigan be disqualified from rehearing the post-conviction
On remand, the case was assigned to Judge Emmett
O'Brien, another member of the St. Louis County Circuit Court. Judge
O'Brien overruled Smulls' motion to disqualify every judge of the St.
Louis County Circuit Court, past and present, as well as his motion for
Rule 29.15 relief. On the appeal of that decision, this Court held that
statements Judge Corrigan gave in a deposition indicated that he may
have discussed the case with Judge O'Brien before Judge O'Brien took the
case, and that Judge O'Brien possibly should have recused himself as a
result. On the second remand, the case was assigned to Judge James
Hartenbach, another member of the St. Louis County Circuit Court. After
an evidentiary hearing, Judge Hartenbach determined that the motion to
disqualify Judge O'Brien properly was overruled. In accordance with this
Court's decision, he ordered the case reassigned to Judge O'Brien, who
reinstated his former judgment overruling Smulls' post-conviction relief
motion. Smulls appeals.
Court en banc holds:
(1) In Smulls' second appeal, this Court denied, on
the merits, Smulls' argument that all the judges of the St. Louis County
Circuit Court should be disqualified. That decision constitutes the law
of the case, and Smulls cannot raise the issue again now.
(2) Judge Hartenbach properly rejected as irrelevant certain evidence
Smulls claims pertained to Judge O'Brien's alleged bias. Smulls failed
to show that Judge O'Brien had been exposed to any of the specific
evidence in question, and he never attempted to ask Judge O'Brien about
it in Judge O'Brien's testimony at the hearing before Judge Hartenbach.
Judge O'Brien testified he was not aware of any effort by the legal
community to influence this Court's opinion. Even if he had been aware
of the evidence, that awareness alone would not require his
disqualification because judges are presumed able to set such evidence
aside in deciding a case.
(3) Smulls has failed to establish that there was a special relationship
between Judge O'Brien and Judge Corrigan that would create an appearance
of impropriety requiring Judge O'Brien's disqualification. Smulls also
failed to show any actions or comments by Judge O'Brien that show bias.
The only criticism reflected in the record is that he thought this
Court's original comments about Judge Corrigan's fitness for the bench
was a matter better suited for the commission on retirement, removal and
discipline. This criticism does not establish disqualifying impartiality,
particularly where this Court deleted its comments about Judge
Corrigan's fitness when it modified its original opinion.
(4) Judge O'Brien properly excluded a private court reporter's
transcript of comments Judge Corrigan made during the original post-conviction
relief hearing. The reporter was not the official court reporter, the
reporter did not appear at the hearing to attempt to authenticate the
transcript, and the transcript was not self-proving. The deposition was
not submitted to Judge Corrigan for his reading and signature, as
required by Rule 57.03(f). Even if the transcript had not been
inadmissible, it would have been cumulative of Judge Corrigan's
statements during the Batson hearing that already were in
(5) Judge O'Brien properly excluded an affidavit that, during the
original Rule 29.15 motion hearing, Judge Corrigan had referred to a
woman who years before had sued him for sexual discrimination as "white."
This testimony was irrelevant to show whether Smulls' attorney was
ineffective for failing to discover Judge Corrigan's bias or
untruthfulness, particularly where Judge Corrigan did not make this
statement until months after the trial was held.
(6) Smulls was not prejudiced by Judge O'Brien's ruling excluding a
newspaper article quoting Judge Corrigan as making a racially
inappropriate comment during a meeting of St. Louis County Circuit Court
judges. The article contained hearsay that was inadmissible to prove
Judge Corrigan was biased, and Judge O'Brien admitted it for the limited
purpose of showing that the allegation that Judge Corrigan was biased
was a matter of public knowledge. Smulls also was not prejudiced by the
judge's exclusion of testimony that another judge allegedly overheard
Judge O'Brien making the comment.
(7) Judge Corrigan properly excluded evidence relating to a judgement
against Judge Corrigan in a 1982 gender discrimination suit because this
matter was not pled properly in Smulls' Rule 29.15 motion, and even if
it had been, the relevancy of the evidence is tenuous at best.
(8) Judge O'Brien did not abuse his discretion in rejecting an offer of
proof containing the testimony of a sociology expert who concluded that
Judge Corrigan's conduct in various trials showed the judge's racial
bias. This testimony did not qualify as an expert opinion because, as
the professor admitted, it was not based on a valid and accepted
scientific methodology. There was no pattern of racial bias as the
professor was not able to identify any prejudice in the sentences
imposed by Judge Corrigan, who consistently followed the jury's
(9) As this Court determined in the initial appeal of this case, no
error occurred in deciding the merits of the Batson challenge to
(10) It was within Judge O'Brien's discretion to stay Smulls' deposition
of Judge Daniel O'Toole until he determined Smulls was entitled to an
evidentiary hearing on the ineffective assistance of counsel claim to
which the deposition related. It also was within Judge O'Brien's
discretion to refuse to continue the evidentiary hearing until Smulls
could depose Judge O'Toole, particularly where Judge O'Brien stated he
would grant a continuance at the end of Smulls' evidence if the
deposition had not yet been taken.
(11) The court properly overruled Smulls' objections to the state's
presentation of five prominent criminal defense attorneys who testified
that Judge Corrigan had a reputation of being free of bias in judging
cases involving African-Americans. Smulls opened the door to character
evidence by introducing evidence of racial bias to show Judge Corrigan's
(12) Smulls cannot succeed on his claim that his trial attorney should
have disqualified Judge Corrigan on the ground of racial bias because he
failed to show there was evidence of such disqualifying bias of which
his trial attorney knew or could have discovered through reasonable
investigation. His attorney had limited resources with which he could
conduct an investigation, and even if he had conducted the kind of
investigation that Smulls now claims was required, it likely would have
turned up as much evidence that Judge Corrigan was not biased as
evidence that he was biased. The decision to disqualify a trial judge is
a matter of trial strategy, and there was no evidence that the
attorney's decision in this case was ineffective. Regardless, the
decision not to disqualify Judge Corrigan did not prejudice Smulls,
particularly where Smulls' Batson challenge was heard twice and
this Court determined in the original appeal that the prosecutor's
peremptory strike of an African-American venirewoman was not pretextual.
(13) Smulls' claim that his attorney should have disqualified Judge
Corrigan because the judge was worried about his upcoming retention vote
in the 1992 general election and therefore would not consider a life
sentence over the death penalty is frivolous. The 1992 general election
was held before Smulls' trial.
(14) No clear error occurred when the motion court found that the
testimony of an expert who testified on behalf of Smulls regarding
whether Smulls could have shot Honickman was not credible. The expert
did not attempt to use the same weapon in his tests as the one used in
the crime and was not certain he and the state used the same machine to
conduct the tests. He also was unaware that Smulls struggled with police
in wet grass and continuously wiped his hands, which can remove gunshot
(15) Smulls' attorney was not ineffective for failing to present certain
mitigating witnesses during the penalty phase who he believed would have
testified that he was nonviolent, amicable, abandoned at childhood,
impoverished, cared for his children, and helpful to his friends and
relatives. There is no absolute duty to present mitigating evidence, and
most of the testimony Smulls believes should have been presented would
have been cumulative of testimony he presented.
(16) Smulls' attorney made a sound strategic decision in not advising
Smulls to testify. Smulls had an extensive criminal history, which would
have been subject to cross-examination and which would have undercut his
theory that he was not the ringleader of the robbery.
(17) The record does not warrant an evidentiary hearing, let alone a
finding of ineffective assistance of counsel, on Smulls' claims that his
trial attorney failed to investigate and challenge the prosecutor's
motive in seeking the death penalty. He failed to prove there was any
purposeful discrimination specific to his case, and the facts of the
case, coupled with Smulls' extensive criminal history, gave the
prosecution a strong case for the death penalty.
(18) Smulls' attorney was not ineffective for calling a substitute
expert to testify about Smulls' psychological report, prepared as
evidence in mitigation. The report's primary author was not available to
testify, and the expert called by counsel worked with the expert in the
(19) Counsel was not ineffective for bringing up Smulls' criminal
history in the opening statements of the penalty phase, as the history
was admissible as an aggravating factor, and it is a common and proper
defense strategy to try to soften the blow.
(20) Smulls' attorney was not ineffective in failing to object to a
comment made by the trial judge during the penalty phase. Taken in
context, the court's explanation did not misallocate the burden of proof,
and any claim that the jury was tainted is speculative.
(21) As to other claims Smulls makes alleging his trial attorney was
ineffective, this Court denied the underlying issues on Smulls' direct
appeal. Counsel cannot be ineffective for failing to raise claims that
Opinion concurring in part by Judge Wolff:
This author believes the number of peremptory challenges allowed each
side should be reduced to one or two. He believes such a change would
help make juries more representative of the communities from which they
come and would help reduce the subtle discrimination based on race,
gender, ethnicity, religion and other factors inherent in many
Opinion concurring in part and dissenting in part
by Judge Stith: This author would hold that Smulls is entitled to
post-conviction relief due to the appearance of impropriety created by
Judge Corrigan's comments at trial and following this Court's June 1996
opinion in this case. She would remand the case so a new trial could be
Opinion Author: Stephen N. Limbaugh, Jr., Chief
Opinion Vote: AFFIRMED. Holstein, Benton and Price,
JJ., concur; Wolff, J., concurs in separate opinion filed; Stith, J.,
concurs in part and dissents in part in separate opinion filed; White,
J., concurs in opinion of Stith, J.
Herbert Smulls was convicted in the Circuit Court of
St. Louis County of first-degree murder and other crimes and was
sentenced to death. On appeal, his convictions and sentence were
affirmed, but the judgment on his Rule 29.15 post-conviction motion was
reversed. State v. Smulls, 935 S.W.2d 9 (Mo. banc 1996),
cert. denied, 520 U.S. 1254 (1997). On remand, his post-conviction
motion was overruled, but again the judgment was reversed on appeal.
Smulls v. State, 10 S.W.3d 497 (Mo. banc 2000). On the latest
remand, the post-conviction motion was again overruled. This Court has
jurisdiction. Mo. Const. art. V, sec. 10. The judgment is affirmed.
In 1991, Smulls was charged with first-degree murder,
first-degree assault, two counts of first-degree robbery, and two counts
of armed criminal action. The jury convicted Smulls of robbery but could
not come to a verdict on the other charges. On retrial, Smulls was
convicted on all the remaining counts. Judge William Corrigan presided
at both trials. The facts surrounding the offenses, as reported in this
Court's original opinion, are as follows:
Stephen and Florence Honickman owned and operated
a jewelry business. Typically, customers wold make an appointment to
examine the jewelry for sale. In early July 1991, a person
identifying himself as "Jeffrey Taylor" called the Honickmans and
made an appointment to buy a diamond. "Jeffrey Taylor" was later
identified as defendant. On July 22, 1991, defendant and Norman
Brown went to the Honickmans' store. After viewing several diamonds,
defendant and Brown left the store without making a purchase.
On the afternoon of July 27, 1991, defendant and Norman Brown
followed another customer into the store. Florence Honickman was
unable to show them any jewelry at that time but suggested she might
be able to help them later. Defendant and Brown returned to the
store that evening. After viewing some diamonds, defendant and Brown
went into a hallway, purportedly to discuss the diamond prices. A
short time later, Florence Honickman looked up and saw defendant
aiming a pistol at her. She then ran and hid behind a door.
Defendant fired three shots at her, striking her arm and side.
Defendant then fired several shots at Stephen Honickman, who was
struck three times. Defendant and Brown stole jewelry worn by
Florence Honickman and other items in the store. After the two men
left the store, Florence Honickman contacted the police. Stephen
Honickman died from his wounds, and Florence Honickman suffered
permanent injuries from the attack.
A short time after the robbery, police stopped defendant and Brown
for speeding. While defendant was standing at the rear of his car,
the police officer heard a radio broadcast describing the men who
robbed the Honickmans' store. Defendant and Brown fit the
descriptions. The officer ordered defendant to lie on the ground.
Defendant then ran from his car but was apprehended while hiding
near a service road. The police found jewelry and other stolen items
from the store in the car and in Brown's possession. The following
morning police found a pistol on the shoulder of the road on which
defendant drove prior to being stopped for speeding. Bullets test
fired from the pistol matched bullets recovered from the store and
State v. Smulls, 935 S.W.2d at 13. In
penalty phase, the jury found the existence of three statutory
[T]he murder of Stephen Honickman was committed
while defendant was engaged in the attempted unlawful homicide of
Florence Honickman; the defendant murdered Stephen Honickman for the
purpose of defendant receiving money or any other thing of monetary
value from Stephen Honickman; and, the murder of Stephen Honickman
was committed while defendant was engaged in the perpetration of a
Id. at 24. Additionally, the state introduced
evidence of non-statutory aggravating circumstances including Smulls'
eleven prior felony convictions. In affirming the judgment imposing the
death sentence, this Court determined 1) that the sentence was not
imposed under the influence of passion, prejudice, or any other
arbitrary factor, 2) that the jury's finding of the statutory
aggravating circumstance was supported by the record, and 3) that the
sentence was not excessive or disproportionate to similar cases.
Despite the fact that Smulls' convictions and death
sentence were affirmed, this Court held that certain comments Judge
Corrigan made during a Batson hearing at voir dire provided "an
objective basis upon which a reasonable person could base a doubt about
the racial impartiality of the trial court." Id. at 26.
These comments, coupled with allegations of pre-trial out-of-court
misconduct and Judge Corrigan's status as a potential witness on those
allegations, required his disqualification from Smulls' Rule 29.15
hearing. Id. at 27. Accordingly, Judge Corrigan's denial of Rule
29.15 relief was reversed, and the case was remanded for a new hearing.
On remand, Judge Emmett O'Brien, another member of the St. Louis County
Circuit Court, was assigned to hear the motion. Smulls filed motions to
voir dire and disqualify Judge O'Brien and all other past and
present St. Louis County judges. Judge O'Brien overruled those motions
and denied the Rule 29.15 motion on the merits. On appeal, this Court
held that statements in a deposition taken of Judge Corrigan indicated
that prior to taking the case, Judge O'Brien may have discussed the case
with Judge Corrigan and should possibly have recused himself from the
29.15 hearing. Smulls v. State, 10 S.W.3d at 504. This
Court remanded for determination of the recusal issue, but with the
Id. at 505.
On remand, the case was assigned to Judge James
Hartenbach, yet another member of the St. Louis County Circuit Court,
who, after an evidentiary hearing, determined that the motion to
disqualify Judge O'Brien was properly overruled. Pursuant to this
Court's directive, Judge Hartenbach ordered the case reassigned to Judge
O'Brien, and Judge O'Brien then re-entered his judgment overruling
Smulls' Rule 29.15 motion. Smulls now appeals the determination that
Judge O'Brien could properly hear the motion as well as Judge O'Brien's
denial on the merits of his Rule 29.15 motion.
II. Smulls' Motion to Disqualify All St. Louis County Judges
After the 1996 remand, Smulls filed a motion to
disqualify all current and former judges of the St. Louis County Circuit.
That motion was overruled. The issue was briefed on the second appeal to
this Court and denied. Smulls v. State, 10 S.W.3d at
499-500. Smulls now attempts to raise the issue again. However, this
Court's earlier resolution of the issue on the merits is the law of the
case and the issue may not be raised again. Williams v. Kimes,
25 S.W.3d 150, 153-54 (Mo. banc 2000).
III. Motion to Disqualify Judge O'Brien
A. Exclusion of Evidence
Smulls first claims that Judge Hartenbach erred in
excluding certain evidence from the hearing that pertained to Judge
O'Brien's alleged bias: (1) the testimony of two judges from St. Louis
City expressing concern that a campaign was being waged by other judges
in favor of Judge Corrigan and against the author of this Court's first
opinion; (2) letters sent to this Court by other judges on Judge
Corrigan's behalf asking this Court to rehear Smulls' case; and (3)
certain newspaper articles from the St. Louis Post-Dispatch
harshly critical of Judge Corrigan.
Smulls contends the evidence is relevant because it
would engender sympathy for Judge Corrigan and pressure Judge O'Brien to
vindicate his fellow judge. Additionally, Smulls points to this evidence
to establish that Judge O'Brien was influenced by extra-judicial factors,
giving rise to an appearance of impropriety. See State v.
Hunter, 840 S.W.2d 850, 866 (Mo. banc 1992).
Judge Hartenbach rejected this evidence because it
was irrelevant. This Court agrees. Smulls did not show that Judge
O'Brien had been exposed to any of the specific evidence in question,
nor did Smulls attempt to ask Judge O'Brien about it during O'Brien's
testimony at the hearing before Judge Hartenbach. Although Judge O'Brien
testified that he was generally aware of newspaper articles on the issue,
he could not recall the content of any of them. As for the concern from
the two St. Louis City judges and the letters to this Court, Judge
O'Brien testified that he was not aware of any effort by the legal
community to influence this Court's opinion. Because he had no knowledge
of the rejected testimony, letters, and articles, they could not have
influenced him. Even if Judge O'Brien had been aware of the evidence,
this alone would not require his disqualification because judges are
presumed to be able to set such evidence aside in deciding a case.
See State v. Taylor, 929 S.W.2d 209, 220 (Mo. banc
B. Judge O'Brien's Impartiality
Smulls next claims Judge Hartenbach erred in his
determination that Judge O'Brien could impartially hear Smulls' Rule
29.15 motion on remand. The basis of the claim, from Smulls' point
relied on, is that "O'Brien was with Corrigan when Corrigan condemned
this Court's calling him 'a racist' and O'Brien may have participated in
criticizing language that produced lobbying against this Court thereby
creating an appearance of impropriety. . . ." This claim arises against
the backdrop of this Court's revision of its original opinion in
Smulls I by deleting certain language that was highly critical of
Judge Corrigan. See Smulls v. State, 10 S.W.3d at
506, n.2 (Limbaugh, J., dissenting).
The Due Process Clause of the United States and
Missouri Constitutions guarantee a criminal defendant an impartial
tribunal, permitting any litigant to remove a biased judge. State v.
Taylor, 929 S.W.2d at 220. Canon 3(D)(1) of the Missouri Code of
Judicial Conduct, Rule 2.03, requires a judge to recuse in a proceeding
where a "reasonable person would have a factual basis to doubt the
judge's impartiality. Id. This standard does not require proof of
actual bias, but is an objective standard that recognizes "justice must
satisfy the appearance of justice." Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 865 (1986). Under this standard, a
"reasonable person" is one who gives due regard to the presumption "that
judges act with honesty and integrity and will not undertake to preside
in a trial in which they cannot be impartial." State v. Kinder,
942 S.W.2d 313, 321 (Mo. banc 1996). In addition, a "reasonable person"
is one who knows all that has been said and done in the presence of the
judge." Haynes v. State, 937 S.W.2d 199, 203 (Mo. banc
1996). Finally, as to due process challenges, the Supreme Court has made
clear that "only in the most extreme of cases would disqualification on
this basis be constitutionally required." Aetna Life Ins. Co.
v. Lavoie, 475 U.S. 813, 821 (1986); see also
State v. Jones, 979 S.W.2d 171, 177 (Mo. banc 1998).
In view of the allegations raised by Smulls, two
cases are particularly helpful. In State v. Nunley, 923
S.W.2d 911, 918 (Mo. banc 1996), an issue presented was whether a
resentencing judge from the same circuit as the original judge could "set
aside his feelings for the original trial judge" and come to an
independent sentencing determination. Similarly, in State v.
Taylor, 929 S.W.2d at 220, the defendant argued that due to the
collegial relationship between the resentencing judge and the original
judge, the resentencing judge would want to "give the original judge a
vote of confidence" by imposing the same sentence. In both Nunley
and Taylor, this Court held that disqualification was not
required absent evidence of a special relationship between the judges
that might create an appearance of impropriety. Id.; Nunley,
923 S.W.2d at 918. Here, Smulls has failed to establish that such a
special relationship existed.
More particularly, there is no basis for establishing
that special relationship, much less an appearance of impropriety,
through the allegation that O'Brien knew Corrigan condemned this Court
for calling him "a racist," and that O'Brien, himself, may have
criticized this Court's original opinion. In that regard, the record of
Judge O'Brien's interaction with Judge Corrigan shows the following:
Judge Corrigan testified that he discussed this Court's decision with
many judges on the St. Louis County Circuit bench; some of those judges
criticized this Court's opinion, and he and Judge O'Brien discussed the
case at some point between the issuance of this Court's original and
modified opinions; however, Judge Corrigan was not sure whether his
discussion with Judge O'Brien was superficial or even whether Judge
O'Brien was one of the judges who criticized the opinion.
Judge O'Brien testified that he did not recall
overhearing Judge Corrigan express any specific disagreement, including
any specific disagreement with language used in this Court's original
opinion. When asked if he and Judge Corrigan discussed the racial bias
claim in Smulls, Judge O'Brien stated, "I've heard statements
made by Judge Corrigan, none of which were after the modified opinion
came out . . . I don't think any of them dealt with specific issues
within the opinion. I think it was just an overall displeasure with the
opinion." Judge O'Brien also testified that he did not have any contact
with Judge Corrigan after the modified opinion was issued, and he
avoided contact with anyone discussing the case because he knew it was
possible that he would be assigned to hear the case. At most, he
presumed the opinion "was not Judge Corrigan's favorite," because it was
critical of Judge Corrigan's fitness for the bench.
Finally, there is no evidence that Judge O'Brien "participated
in criticizing language that produced lobbying against this Court," nor,
as noted, is there evidence that Judge O'Brien even knew of allegations
to that effect. In fact, his only criticism on this record was that this
Court's comments regarding Judge Corrigan's fitness for the bench was a
matter better suited for the Commission on Retirement, Removal and
Discipline. That criticism does not establish disqualifying bias, if for
no other reason than that the criticism was validated when this Court
deleted the comments regarding Judge Corrigan's fitness.
In sum, Smulls failed to prove, either through the
existence of a special relationship between Judge O'Brien and Judge
Corrigan or through Judge O'Brien's comments and actions themselves,
that a reasonable person would have reason to doubt Judge O'Brien's
IV. Denial of Rule 29.15 Claims with Evidentiary Hearing
The effect of this Court's determination that Judge
O'Brien could hear Smulls' Rule 29.15 hearing is that Judge O'Brien's
denial on the merits is reinstated. Smulls' amended motion contained
twenty-six claims. All but five were dismissed without an evidentiary
hearing. An evidentiary hearing was granted on the five claims, as well
as several from Smulls' pro se motion. These include ineffective
assistance of counsel claims for (a) failure to move for Judge
Corrigan's disqualification, (b) failure to present the results of
gunshot residue tests performed on Smulls and his accomplice, (c)
failure to present certain mitigating factors in penalty phase, and (d)
discouraging Smulls from testifying at his second trial. All of these
claims were denied. The standard of review is as follows:
This Court's review is limited to determining
whether the motion court clearly erred in its findings and
conclusions. The findings and conclusions of the motion court are
clearly erroneous only if, after a review of the entire record, the
appellate court is left with the definite impression that a mistake
has been made.
Rousan v. State, 48 S.W.3d 576, 581 (Mo. banc 2001) (citations
A. Failure to Move for Judge Corrigan's Disqualification
The principal claim of this appeal is that Smulls'
trial counsel was ineffective for failing to discover evidence of Judge
Corrigan's racial bias and move for his disqualification. This claim is
based essentially on the same allegations and conduct this Court
considered in disqualifying Judge Corrigan from hearing the Rule 29.15
motion: 1) that prior to the case, Judge Corrigan told a racist joke to
a group of judges, that judgment had been entered against him for sexual
harassment, and that he discriminated against African-American
defendants in the disposition of criminal cases; and 2) that during the
case, he made racially insensitive comments at the Batson hearing.
Although the circumstances of the Batson
hearing were reported extensively in the first Smulls opinion,
they bear repeating here: The defendant noted that Ms. Sidney was the
only remaining black venireperson and requested a Batson hearing.
When the prosecutor stated his reasons for striking Ms. Sidney, Smulls'
counsel claimed the reasons were pretextual and requested a mistrial.
The court denied defendant's request. The next day, Smulls' counsel
renewed the Batson challenge and stated for the record that Judge
Corrigan would have been aware the victims were white and the defendant
was black because he presided over the first trial. Judge Corrigan
stated he did not remember who was black and who was white, but that he
would accept the defendant's statement. He then reiterated his denial of
the Batson claim. When the defendant again noted that Ms. Sidney
was the last black venireperson, Judge Corrigan stated that he did not
know what it meant to be black, that he never takes judicial notice of a
person's race without direct evidence, and that it is counsel's
responsibility to establish who is black and who is not. In this regard,
There were some dark complexioned people on this
jury. I don't know if that makes them black or white. As I said, I
don't know what constitutes black. Years ago they used to say one
drop of blood constitutes black. I don't know what black means. Can
somebody enlighten me of what black is? I don't know; I think of
them as people.
1. Exclusion of Evidence
Initially, Smulls assigns error to Judge O'Brien's
exclusion of certain evidence regarding Judge Corrigan's racial
a. Unofficial Transcript
During the original 29.15 proceedings, Smulls
directed a request for admissions to the prosecuting attorney seeking to
establish that the defendant was black, the victims were white, and the
jury panel selected was all white. Following longstanding custom and
practice for non-evidentiary motion hearings in civil cases, Judge
Corrigan did not provide the court's official reporter. Therefore,
Smulls brought a private court reporter to the hearing who recorded and
transcribed the following statements from Judge Corrigan:
This Court won't take the position that people
are white or black. It is the Court's position that you can't look
at people and determine what their race is . . . . If the lawyers
don't want to ask the jurors whether the people are white or black
or ask a witness if he's white or black, then I don't think that I
-- I can ask the parties to make that admission.
At the 29.15 remand hearing before Judge O'Brien,
Smulls tried to admit this transcript, arguing that the transcript
demonstrates Judge Corrigan's professed inability to acknowledge a
person's race. Smulls also wished to present testimony and an affidavit
from his original 29.15 counsel that Judge Corrigan made statements
indicating he could recognize a person's race when he so chose.
On objection by the state, Judge O'Brien properly
excluded the transcript on the basis that the reporter was not the
official court reporter, the reporter did not appear at the hearing to
attempt to authenticate the transcript, and the transcript was not self-proving.
In addition, Rule 57.03(f) states that after a deposition is taken and
transcribed, it must be submitted to the deponent for his reading and
signature. This was not done.
Subsection (g) then provides for the signature of the
officer transcribing the deposition, but in the absence of the signature
of the deponent, that attestation does not guarantee the accuracy of the
transcript. Coffel v. Spradley, 495 S.W.2d 73, 738 (Mo.
App. 1973). For all of these reasons, the transcript was inadmissible.
Regardless, given the similarities between this transcript and Judge
Corrigan's statements during the Batson hearing already in
evidence, the transcript would have been cumulative.
b. Counsel's Race-Recognition Testimony
Smulls' former counsel attempted to testify via
affidavit that during the initial Rule 29.15 hearing, Judge Corrigan
referred to the woman who years before sued him for sexual
discrimination as "white." The state objected to the testimony on
several grounds, including relevancy, and Judge O'Brien sustained the
objection. Although the testimony was offered to show Judge Corrigan's
possible bias or untruthfulness about race-recognition, it is irrelevant
to show counsel's ineffectiveness for failing to discover that bias or
untruthfulness. For this evidence to be relevant to that claim, the
evidence must have been known to counsel or discoverable during
reasonable investigation. White v. State, 939 S.W.2d 887,
895-96 (Mo. banc 1997). However, Judge Corrigan's statement was not made
to counsel until the initial Rule 29.15 hearing, after trial. Smulls'
counsel could not have presented this evidence in a motion to disqualify
before or during trial, many months before the statement was made.
c. "Barbecue Joke" Evidence
A Post-Dispatch article published in 1983
reported that Judge Corrigan said during a meeting of judges that, "We
can't have a barbecue because we don't have a black judge to do the
cooking." Smulls claims he offered this article not to establish whether
there were in fact any black judges in the St. Louis County Circuit, but
to establish that Judge Corrigan was biased and that his bias was public
knowledge. He claims his counsel knew or should have discovered this
alleged evidence of bias, and that that contributed to counsel's
ineffectiveness in failing to file a motion to disqualify Judge Corrigan.
Judge O'Brien ruled the article was hearsay.
"A hearsay statement is any out-of-court statement
that is used to prove the truth of the matter asserted and that depends
on the veracity of the statement for its value." Rodriguez v.
Suzuki Motor Corp., 996 S.W.2d 47, 59 (Mo. banc 1999). To the extent
that the article was offered to prove bias, it was inadmissible.
Contrary to defendant's position, the truth of the matter asserted is
not that they could not have a barbecue because there were no black
judges available, but that Judge Corrigan said they could not
have a barbecue because there were no black judges available. See
3 Stephen A. Saltzburg, et al., Federal Rules of Evidence Manual
1466 (7th ed. 1998). On the other hand, the article was admissible to
show that the allegation that Judge Corrigan was biased was a matter of
public knowledge, and, in fact, Judge O'Brien admitted the testimony for
that limited purpose.
Smulls also offered the deposition testimony of Judge
Campbell, who related that he personally overheard Judge Corrigan making
the joke. Judge O'Brien disallowed this evidence on hearsay grounds, but
the state has made no effort in its brief to defend the ruling. Assuming
the testimony should have been admitted, it is much less probative of
what Smulls' counsel knew or should have discovered about the matter
than the newspaper article. To the extent Judge O'Brien disallowed or
discounted this evidence, Smulls was not prejudiced.
d. Gender Discrimination Suit Evidence
Smulls next claims the motion court erred in
excluding certain evidence related to a 1982 gender discrimination suit
against Judge Corrigan that resulted in a judgment against him as
reported in Goodwin v. Circuit Court of St. Louis County,
729 F.2d 541 (8th Cir. 1984). The evidence consisted of: 1) an affidavit
from the plaintiff in that case to the effect that Judge Corrigan
accurately identified her as "white," and 2) docket sheets reflecting
that the case was heard by an African-American judge. The purported
relevancy of this evidence was that it tended to show that Judge
Corrigan could identify the race of a party when he so chose, and "demonstrat[ed]
and prove[d] why Corrigan approximately one year later told the barbecue
joke." These matters were not pled as part of the Rule 29.15 motion, and
the evidence was properly excluded for that reason. Even if those
matters were properly pled, the relevancy of the evidence is tenuous,
especially in light of this Court's holding in the original Smulls
opinion that the gender discrimination suit in question did not
disqualify Judge Corrigan from hearing gender-Batson claims.
State v. Smulls, 935 S.W.2d at 16-17.
e. Exclusion of Dr. Galliher's testimony
Smulls called Dr. John Galliher, a professor of
sociology who had reviewed Judge Corrigan's conduct during various
trials in order to establish racial bias. Judge O'Brien excluded the
evidence for a variety of reasons, ultimately concluding that the
testimony was not credible. On appellate review, such a determination
will rarely be overturned because a trial court is in the best position
to assess the credibility and usefulness of expert testimony. State v.
Rousan, 48 S.W.3d at 589.
In an offer of proof, Dr. Galliher discussed at
length the existence and effect of unconscious racial bias in our
society, that people with such bias falsely claim not to be able to
recognize race and will tell jokes to express their feelings, and that
there is a correlation between gender bias and racial bias. He also
commented on excerpts from Smulls' trial and several of Judge Corrigan's
other cases. He concluded that "Judge Corrigan's behaviors viewed
together were inconsistent with adhering to Batson's spirit and
were relevant to Smulls' ability to have Batson fairly decided."
Judge O'Brien rejected this testimony in part because
it did not satisfy the Frye test that an expert opinion must be
based upon a valid and accepted scientific methodology and assist the
trier of fact in the determination of an issue. Callahan v.
Cardinal Glennon Hosp., 863 S.W.2d 852, 860 (Mo. banc 1993); Frye
v. United States, 293 F.2d 1013, 1014 (D.C.Cir. 1923). Dr.
Galliher admitted that his opinions were not based upon a random
sampling of Judge Corrigan's cases or any first-hand observation of any
of Judge Corrigan's cases. He testified that Judge Corrigan berates
black defendants in a manner not found in cases with white defendants,
but admitted that he did not look beyond the nine cases selected by
Smulls (out of hundreds heard), and that the defendants were black in
only six of those nine cases. The circumstances of these cases prove the
point: In one case, Judge Corrigan referred to the defendant as an
"animal," but the defendant had been convicted of the brutal beating and
rape of an elderly woman; in another case, Judge Corrigan called the
defendant a "mad dog;" but the defendant was a serial rapist; in another
case, he called the defendant a "flim-flam man," but the defendant had
been found guilty of forgery and defrauding his employer. The other
cases are comparable. This is hardly proof of a pattern of racial bias.
Moreover, Dr. Galliher was not able to identify any prejudice in the
actual imposition of sentences and noted Judge Corrigan consistently
followed the jury's recommendation. For these reasons, Judge O'Brien did
not abuse his discretion in rejecting Dr. Galliher's testimony.
f. Smulls' Affidavits from Defense Attorneys
Next, Smulls complains that Judge O'Brien improperly
excluded "evidence about an alleged policy of racial discrimination by
St. Louis County prosecutors in voir dire." This evidence was offered by
way of affidavits from three local criminal defense lawyers and was
designed to show that Smulls' counsel should have disqualified Judge
Corrigan to avoid the combination of a biased prosecutor and a biased
judge. This claim fails because it was determined in the initial appeal
that no error occurred in deciding the merits of the Batson
challenge. State v. Smulls, 935 S.W.2d at 14-16.
2. Stay of Judge O'Toole's Deposition
Smulls subpoenaed Judge Daniel O'Toole, claiming
Judge O'Toole also heard Judge Corrigan tell the "barbecue joke." At the
state's request, Judge O'Brien stayed the deposition until he determined
Smulls was entitled to an evidentiary hearing on the ineffective
assistance of counsel claim to which the deposition related. Judge
O'Brien lifted the stay on January 5, 1998, but he denied Smulls' motion
for a continuance of the evidentiary hearing until the deposition could
be taken. Nonetheless, he assured Smulls that additional time would be
provided as necessary. Smulls scheduled the deposition for March 9,
1998, but Judge O'Toole died on that very day after an extended bout
Smulls first claims that the state had no standing to
request the stay. Smulls is mistaken. The rules of civil procedure apply
to Rule 29.15 motions. Rule 29.15(a). Rule 56.01(c) permits any party to
file a motion for a protective order. A request for a stay order falls
within that rule.
Smulls next claims that the trial court's stay of the
deposition was improper because Smulls was denied access to a witness
who had useful information. "Trial courts have broad discretion in
administering rules of discovery, which this Court will not disturb
absent an abuse of discretion." State ex rel. Crowden v. Dandurand,
970 S.W.2d 340, 343 (Mo. banc 1998). As noted, the basis of the state's
motion was that the deposition was premature and unduly burdensome until
the motion court determined whether Smulls was entitled to an
evidentiary hearing. The stay was proper under Rule 56.01(c), which
permits the trial court to make "any order which justice requires to
protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense." Smulls' citation to Rule 56.01(b)(1), which
states that parties are entitled to discovery on any relevant matter,
does not address the issue. Judge O'Brien's ruling was not a
determination that Smulls was not entitled to the discovery. The stay
was in place only until he granted an evidentiary hearing and was lifted
three months prior to Judge O'Toole's death. There was no abuse of
discretion. See State v. Ferguson, 20 S.W.3d 485, 504 (Mo.
Smulls also argues that Judge O'Brien improperly
refused to continue the evidentiary hearing until Judge O'Toole could be
deposed. Smulls filed a motion requesting a continuance or, "at minimum,"
that the court "hold open the evidence" until the deposition could be
taken. In response, Judge O'Brien denied the motion, but stated he would
grant a continuance at the close of Smulls' evidence if the deposition
had not yet been secured. It is well settled that "[t]he decision to
grant or deny a request for a continuance . . . rests within the trial
court's discretion and will not be reversed absent a clear showing of
abuse of discretion." State v. Barton, 998 S.W.2d 19, 27 (Mo.
banc 1999). Because the court was willing to grant a continuance if
Judge O'Toole's deposition was not taken by the time Smulls rested his
case, there was no abuse of discretion.
3. Admission of Judge Corrigan's Character
Smulls objected to the relevancy of the state's
presentation of five prominent criminal defense attorneys who know Judge
Corrigan and testified to his reputation as being free of bias when
judging cases involving African-Americans. Smulls concedes that
character evidence is relevant when put in issue by the nature of the
proceeding, and his real complaint seems to be that character evidence
has no bearing on racial bias. However, an inquiry into a judge's
alleged racial bias cannot be conducted without an inquiry into
the judge's character because the presence or absence of racial bias is
part of a judge's character. Where, as here, a party has opened the door
by introducing evidence of bad character as manifested by racial bias,
the other party may introduce evidence of good character as manifested
by the lack of racial bias.
Citing Clemmons v. State, 785 S.W.2d
524, 531 (Mo. banc 1990), Smulls also argues that the character and
reputation witnesses were not competent to testify because their
testimony relates solely to "issues the motion court must decide." It is
clear from their testimony, however, that the witnesses were testifying
not as experts on a matter of law, but as persons familiar with Judge
Corrigan's judicial temperament. In Clemmons, the attorneys were
impermissibly testifying regarding ineffective assistance of counsel, an
issue of law. Id. In contrast, the witnesses here testified
regarding bias, a factual determination. See State v. Kinder,
942 S.W.2d at 334 (Mo. banc 1996); State v. Thomas, 596
S.W.2d 409, 413 (Mo. banc 1980).
4. Analysis of the Evidence of Racial Bias
To succeed on the claim that trial counsel should
have disqualified Judge Corrigan on the ground of racial bias, Smulls
must show that there was evidence of such disqualifying bias that his
trial counsel knew of or could have discovered with a reasonable amount
of investigation. White v. State, 939 S.W.2d at 895-96;
State v. Twenter, 818 S.W.2d 628, 640 (Mo. banc 1991). Smulls
has not done so. Most of the pre-trial, out-of-court evidence that
purportedly indicated Judge Corrigan's racial bias should not be
considered because it was properly excluded from evidence at the Rule
29.15 hearing before Judge O'Brien. In particular, the newspaper article
about the racist joke was hearsay, and the report from Dr. Galliher on
Judge Corrigan's allegedly disparate treatment of black defendants was
not based on scientific study and lacked credibility otherwise.
Even if that evidence had been properly admitted, it
is not evidence that trial counsel knew of or could have discovered with
a reasonable amount of investigation. To uncover evidence that Judge
Corrigan allegedly told a single racist joke to an informal group of
judges some ten years before trial, even when the joke was reported in
the newspaper, is not required as part of any reasonable
investigation. This is especially true considering trial counsel has
only limited resources and must necessarily be given deference as to the
target and scope of such investigation. See State v. Clay,
975 S.W.2d 121, 143 (Mo. banc 1998). This conclusion applies all the
more to the kind of investigation conducted by Dr. Galliher. More
importantly, counsel would not know the need to conduct these
investigations until the allegedly racially insensitive remarks were
made during the Batson hearing after the trial had commenced.
Only then did the issue of Judge Corrigan's racial prejudice clearly
Furthermore, even had counsel conducted the kind of
pre-trial investigation that Smulls, in hindsight, now claims was
required, the investigation would have likely turned up as much evidence
that Judge Corrigan was not biased as evidence that he was biased. The
five criminal defense lawyers who practice regularly before Judge
Corrigan testified unequivocally that their African-American clients had
been treated fairly, and even Judge Campbell, who testified that he
overheard the racist joke years ago, qualified his statement by then
testifying that during the many years he had served with Judge Corrigan,
he had never heard of a claim or allegation of racial bias made against
him. Under these circumstances, counsel cannot be faulted for failing to
move for Judge Corrigan's disqualification before trial.
Whether counsel should have moved to disqualify Judge
Corrigan after his comments at the Batson hearing is
perhaps another question, and ultimately, the issue to be resolved is
whether counsel should have attempted to disqualify Judge Corrigan on
the basis of his comments during the Batson hearing alone.
Although this Court determined in the first Smulls opinion that
those comments were racially insensitive, State v. Smulls,
935 S.W.2d at 26, Judge Corrigan's disqualification from the Rule 29.15
proceeding was required because those comments were coupled with the
several allegations of pre-trial, out-of-court misconduct and the
likelihood that Judge Corrigan, himself, would be a witness for those
allegations. Id. at 27.
The decision to disqualify a judge is a matter of
trial strategy. State v. Ayers, 911 S.W.2d 648, 652 (Mo.
banc 1995); see also Wilson v. State, 626 S.W.2d 243,
248-49 (Mo. banc 1982). As with all matters of trial strategy, appellate
courts are properly deferential to trial counsel's decisions. Lyons v.
State, 39 S.W.3d 32, 36 (Mo. banc 2001). In that regard, it may well
be that trial counsel perceived that Judge Corrigan's Batson
comments were made innocuously. Further, counsel acknowledged that there
was at least one important strategic reason to keep Judge Corrigan on
this case: Judge Corrigan believed that the jury instruction that
permitted the judge to impose the death penalty if the jury could not
agree on punishment, MAI-CR3d 313.48B, was unconstitutional, and Judge
Corrigan stated that he would have an extremely difficult time imposing
the death penalty if the jury did not. On this record, counsel cannot be
convicted of being ineffective for failing to disqualify Judge Corrigan.
Finally, hindsight shows that the decision not to
disqualify Judge Corrigan did not result in prejudice. Smulls cannot
point to any judicial decision that evidences Judge Corrigan's alleged
bias or in which Judge Corrigan's alleged bias produced an unjust result.
This Court expressed concern in its 1996 decision that Judge Corrigan's
refusal to acknowledge race raises "serious questions about his
willingness to do what Batson requires," Smulls, 935 S.W.2d
at 26, and this Court wrote: "The trial court cannot add subtle burdens
to the Batson process by refusing to take note of race where
trial counsel properly places it at issue." Id. However, a
careful review of the record shows that Smulls' Batson challenge
was heard not once, but twice, and at the first hearing, Judge Corrigan
did not dispute that Ms. Sidney was African-American. Indeed, the
controversy did not arise until the second hearing on the second day
when Judge Corrigan's memory had faded and Ms. Sidney and the other
jurors who were not selected were no longer present. Ultimately, this
Court determined in the original appeal that the prosecutor's peremptory
strike of Ms. Sidney was not pretextual and that Judge Corrigan
correctly denied the Batson challenge. Id. at 14-16.
Smulls advances no evidence indicating otherwise. The simple fact is
that Judge Corrigan's skepticism at Smulls' Batson hearing,
whether honest or obstinate, did not prevent Smulls' claims from being
heard and did not prove that the outcome of that hearing or the trial as
a whole was the product of the judge's bias.
B. Disqualification Because of Retention Vote
Smulls next claims that his counsel was ineffective
for failing to have Judge Corrigan disqualified because Judge Corrigan
was worried about his upcoming retention vote in the 1992 general
election. Smulls explains that given that concern, Judge Corrigan would
be unwilling to consider a life sentence instead of the death penalty
because a willingness to consider a life sentence might erode support at
the polls. This claim is frivolous. The 1992 general election was held
before Smulls' trial.
C. Failure to Present Gunshot Residue Evidence
Gunshot residue tests were performed on Smulls and
his accomplice. No residue was detected on Smulls, and the test on his
accomplice was inconclusive. During the first trial, the state's expert,
Dr. Rothove, was unavailable, and the parties agreed to a short
stipulation regarding the test results. At the second trial, Smulls'
counsel subpoenaed Rothove, but did not call him, having just learned
that he would not support the theory that the accomplice fired the shots.
As we understand it, Smulls' claim is that counsel did not interview
Rothove in time to adjust strategy and that counsel was ineffective for
failing to present the stipulation. Smulls now concedes that the
stipulation was not available on retrial and claims his counsel should
have obtained an independent expert. This claim was not pled.
Nevertheless, Smulls attempted to present the testimony of Donald Smith,
a criminologist. Judge O'Brien gratuitously reviewed the claim, but
rejected Smith's testimony because Smith could not identify which of the
two suspects was the shooter, did not sufficiently duplicate the state's
test, and was not otherwise credible.
Smulls must establish that his counsel was
ineffective in failing to obtain an independent expert and that it is
reasonably probable that the deficiency affected the outcome. White
v. State, 939 S.W.2d at 895-96; State v. Twenter, 818
S.W.2d at 640. Smith testified that either one of the defendants could
have been the shooter. However, in conducting his own tests, Smith did
not attempt to obtain the same weapon used in the crime, and he admitted
that different weapons of the same make and model can "kick off"
different residues. In addition, Smith was not certain he and the state
used the same machine to conduct the tests. He also was unaware that
Smulls struggled in wet grass with the police and continuously wiped his
hands, which can remove residue. See Wainwright v. Lockhart,
80 F.3d 1226, 1230 (8th Cir. 1996). Based upon these factors it cannot
be said that it was clear error for the motion court to find Smith's
evidence lacking in credibility. See State v. Hall, 982
S.W.2d 675, 687-88 (Mo. banc 1998); Wainwright, 80 F.3d at 1230
D. Failure to Present Mitigating Circumstances
Smulls claims Judge O'Brien clearly erred in denying
his claim that his counsel was ineffective for failing to interview and
present certain mitigating witnesses during penalty phase. These
witnesses would allegedly have testified that he was nonviolent,
amicable, abandoned at childhood, impoverished, cared for his children,
and that he was helpful to friends and relatives.
While counsel is required to investigate possible
mitigating circumstances, Nunley, 923 S.W.2d at 924, there is no
absolute duty to present mitigating evidence. State v. Shurn,
866 S.W.2d 447, 472 (Mo. banc 1993). Furthermore, "[c]ounsel is not
ineffective for not putting on cumulative evidence." Skillicorn v.
State, 22 S.W.3d 678, 683 (Mo. banc 2000). Smulls presented five
witnesses during the penalty phase: Dr. Wells Hively, a psychologist;
Smulls' pastor, who had known him since he was a child; a supervisor and
a corrections officer at the jail where Smulls was incarcerated; and
Smulls' adopted father, who had raised him since he was a year and a
half old. Dr. Hively explained that Smulls is depressed, has a dependent
personality, and is not violent unless he is coerced. The pastor
testified that Smulls is polite, respectful and not violent. The
corrections supervisor and guard testified that he was a good worker and
that he did not cause trouble. His father testified that Smulls was
abandoned as a child and did not finish high school, and that he still
cared for Smulls as he would his own blood.
Most of the witnesses and testimony Smulls claims his
counsel should have presented would be cumulative of testimony that had
already been presented. In addition, the motion court, which is in the
best position to evaluate credibility, found that a number of these
witnesses were not credible. They include Randy Edwards and Dennis Brown,
who both arrived in court to testify with a list of typed questions with
parenthetical answers; Crispin Smith, who had a "close relationship"
with Smulls but supposedly did not know he was on parole; Maggie Cain,
who knew Smulls only from church; and Patricia Lee, who knew him only in
passing. The motion court's findings on this matter were not clearly
erroneous. Rousan v. State, 48 S.W.3d at 589. Furthermore,
in light of the aggravating factors found by the jury, Smulls has not
shown that the additional mitigating testimony would have produced a
different result had it been presented at trial.
E. Smulls' Decision Not to Testify
Smulls claims his counsel was ineffective for not
advising him to testify. Smulls testified at his first trial, and the
jury could not reach a verdict on the murder count. He claims this gives
rise to a "reasonable probability" that he would not have been convicted
had he testified at his second trial. See Rousan v. State,
48 S.W.3d at 581-82. "Advice of counsel that a defendant not testify,
without more, is not incompetent when it might be considered sound trial
strategy." State v. Powell, 798 S.W.2d 709, 718 (Mo. banc
1990). Smulls has an extensive criminal history, which was a subject of
cross-examination during the first trial and a probable subject of
cross-examination during the second trial. This would have undercut his
theory that he was not the ringleader of the robbery. In addition, the
trial court discussed with him his decision not to testify. The argument
that his testimony at the first trial caused the hung jury is
speculative, and he has not demonstrated that his counsel's decision was
anything other than sound trial strategy. See State v.
Chambers, 891 S.W.2d 93, 112 (Mo. banc 1994).
V. Denial of Rule 29.15 Claims Without an Evidentiary Hearing
In post-conviction relief motions,
[a]n appellant is entitled to an evidentiary
hearing only if his motion meets three requirements: (1) the motion
must allege facts, not conclusions, warranting relief; (2) the facts
alleged must raise matters not refuted by the files and records in
the case; and (3) the matters of which movant complains must have
resulted in prejudice.
State v. Morrow, 21 S.W.3d at 823.
A. Prosecutor's Motive to Seek the Death Penalty
Smulls claims his trial counsel was ineffective for
failing to investigate and challenge the prosecutor's motive to seek the
death penalty. Again, to establish ineffective assistance, Smulls must
describe the information his attorney failed to discover, allege that a
reasonable investigation would have uncovered the information, and prove
the information would have aided his position. State v. White,
939 S.W.2d at 895-96; State v. Twenter, 818 S.W.2d
at 640. Further, "[t]o show that the prosecutor sought the death penalty
for racially discriminatory reasons," defendant must prove that the
prosecutor's decision had "a discriminatory effect" on defendant and
that the decision was "motivated by a discriminatory purpose." State
v. Morrow, 21 S.W.3d at 825. Finally, movant "must offer
clear proof of discrimination in his own case." State v.
Brooks, 960 S.W.2d at 499.
Smulls' motion alleged that: (1) he is an
economically disadvantaged African-American, (2) his victims were
Caucasian and the crime occurred in an affluent Caucasian suburb, (3)
evidence would be presented that in factually similar homicide cases
with Caucasian defendants the state did not seek the death penalty, (4)
the death penalty was sought in his case because he is African-American,
(5) reasonably competent counsel would have investigated and raised this
matter, and (6) he was prejudiced. Smulls claims that fear of African-American
males because they are "causally linked to crime" motivated the
prosecutor to seek the death penalty.
Smulls' evidence in support of these allegations
consisted of a "Task Force Report on the Status of the African-American
Male in Missouri" attached to his pleadings, which purportedly showed in
capital cases a "glaring racial difference" that "results from the
discretionary decisions of prosecutors." This evidence fails to prove
purposeful discrimination specific to his case. State v.
Morrow, 21 S.W.3d at 825. Furthermore, where, as here, the facts of
the case strongly support the existence of statutory aggravating factors,
not to mention Smulls' extensive criminal history, the likely motivation
for seeking the death penalty is the strength of the prosecution's case.
See id.; State v. Brooks, 960 S.W.2d at 499-500.
The record does not warrant an evidentiary hearing, much less a finding
of ineffective assistance of counsel.
Smulls also takes issue with the motion court's
refusal to allow interrogatories on this claim. Because the
determination to deny the claim without an evidentiary hearing was
properly made solely on "the motion and the files and records of the
case," discovery before the determination of which claims warrant an
evidentiary hearing would be premature. See State v. Ferguson,
20 S.W.3d at 504. Discovery after denial of such a claim is unwarranted
because the discovery is no longer "relevant to the subject matter
involved in the pending action." Id.
B. Dr. Hively's Testimony
Smulls claims his counsel erred in calling Dr. Wells
Hively during penalty phase because Dr. Hively was not the author of
Smulls' psychological report, which was prepared as evidence in
mitigation. The expert who prepared the report was unavailable, and Dr.
Hively, who worked with the expert on the case, was called as a
replacement. Counsel cannot be faulted because she had little choice but
to call another witness familiar with the report. In addition, trial
counsel's testimony to the contrary notwithstanding, it is unlikely that
Smulls suffered prejudice from counsel's choice to present a different
expert than the one who prepared the report. Doctor Hively testified
that his entire office, including himself, was involved in the
preparation of the report, that he examined Smulls four times, and that
his opinion was based upon those examinations as well as the results of
psychological tests and police reports. The motion court's denial of
this claim was not clearly erroneous.
Smulls also alleges that instead of calling Dr.
Hively, his counsel should have called a "comprehensive mental health
expert." Counsel is not ineffective for failing to shop around for
additional experts. Lyons v. State, 39 S.W.3d at 41.
C. Penalty Phase Opening Statement
Smulls claims his counsel was ineffective for
commenting, during opening statement in penalty phase, that Smulls could
not find a job because of a disability and turned to a life of crime as
an easy way out. Smulls' eleven prior felony convictions were admissible
to impeach his credibility if he took the stand and admissible
regardless as an aggravating factor in penalty phase. It is a common and
proper defense strategy to mention convictions first in order to soften
the blow. See Richardson v. State, 577 S.W.2d 653, 655 (Mo.
banc 1979). Counsel was not ineffective in this regard.
D. Failure to Object to Instructions
Smulls claims his counsel was ineffective for failing
to object to allegedly confusing punishment phase instructions and to
present survey data on the accuracy of juror comprehension. Smulls
concedes that this Court has recently rejected such a claim in State
v. Deck, 994 S.W.2d 527, 542-43 (Mo. banc 1999). The claim is
denied on that basis.
E. Voir Dire
Smulls claims his counsel was ineffective for failing
to object when the trial court stated that, "theoretically" speaking,
the defendant does not have the burden to prove that he should not be
put to death. The record reflects an extensive dialogue with the juror
in question, during which the trial court made it clear that the state
bore the burden. Taken in context, and considering the person did not
serve on the jury, the court's explanation did not misallocate the
burden, and any claim the jury was tainted is speculative.
VI. Claims Denied on Direct Appeal
Smulls' motion also raises a number of ineffective
assistance of counsel claims in which the underlying issues were denied
by this court on direct appeal: (1) failure to prove the prosecutor's
reasons for striking Ms. Sidney were pretextual, State v.
Smulls, 935 S.W.2d at 14-16; (2) failure to move to quash the entire
venire because a juror who had been stricken was permitted to stay and
answer questions, id. at 19; (3) failure to present as a
mitigating factor that the accomplice admitted to shooting the victims,
id. at 20-21; (4) failing to move for a mistrial when the
jury expressed concern for its safety in notes sent to the court during
guilt phase deliberations, id. at 22. Counsel cannot be
ineffective for failing to raise non-meritorious claims.
The judgment is affirmed.
Concurring Opinion by Judge Wolff:
I concur in the principal opinion, but write
separately only to raise the question of the wisdom of allowing each
side nine peremptory challenges. Our system of peremptory challenges
greatly encourages the racial discrimination in jury selection that
Batson v. Kentucky, 476 U.S. 79 (1986), attempted to end. Moreover,
jury selection is susceptible to being manipulated by either prosecution
or defense to the extent that the resulting jury does not appear to be
drawn from a reasonable cross-section of the community.
The road to Hell, it is said, is paved with good
intentions. Batson was decided with the best of intentions --
eliminating racial discrimination in the use of peremptory challenges.
The present case, with its tormented history, shows that good intentions
may not have led to Hades, but the road surely has been fraught with
Justice Thurgood Marshall predicted that the
protections provided for in Batson would be largely illusory.
Batson, 476 U.S. at 106 (Marshall, concurring). He was right, of
course, for reasons that lawyers may find uncomfortable to acknowledge.
Our discomfort arises from the essential truth about
jury selection -- it is based on generalizations about a venireperson's
race, ethnicity, religion, sex, socioeconomic status, occupation,
neighborhood, among other factors. Those who study jury behavior and
teach trial advocacy tell us that certain types of people are preferred
jurors depending on the particular type of case. For instance, it is
commonly believed that plaintiffs in personal injury cases prefer jurors
with ethnic backgrounds such as African-Americans, Hispanics, Irish,
Jews, French, Italians, and other Mediterraneans. It is claimed that
these people respond well to the emotional appeal in cases. 1 Irving
Goldstein & Fred Lane, Goldstein Trial Technique, Ch 9, 86 (3d ed.
2001). On the other hand, those of German, English, and Scandinavian
descent are considered to be best for the defense in personal injury
cases. Id. at Ch 9, 87. Practitioners in criminal cases make
similar generalizations based on such factors. It is commonly believed,
for instance, that African-American jurors view the death penalty less
favorably than their white counterparts.(FN1)
The point is not to say that these generalizations
are evil or even inaccurate. But it suffices to say that racial
profiling, while not exactly invented by trial lawyers, is alive and
well in the jury selection process.
Historically the peremptory challenge allowed a
lawyer to strike a certain number of prospective jurors without having
to state a reason. The peremptory challenge in the United States is said
to have been used by states to resist the desegregation forced upon them
by the federal government. Morris B. Hoffman, Peremptory Challenges
Should be Abolished: A Trial Judge's Perspective, 64 U. Chi. L. Rev.
809, 849 (Summer 1997). The original purpose of the peremptory challenge
in England was to balance the playing field against the Crown's
unlimited ability to eliminate prospective jurors. However, Judge
Hoffman argues, the peremptory challenge in America has no such noble
purpose because of our racial history. Id. at 844. Once the civil
rights movement resulted in elimination of Jim Crow laws enforcing
segregation, Judge Hoffman contends, the peremptory challenge continued
to serve as an efficient final racial filter to ensure all-white juries.
Id. at 829. The case against peremptory challenges on racial
grounds may be a bit overstated because, irrespective of its use in some
jurisdictions to deny African-Americans full participation in the legal
system, it remains well entrenched in jurisdictions that have no history
of resistance to civil rights.
Perhaps we are comfortable with our generalizations.
What if a trial lawyer infers from the social sciences that members of
certain racial or ethnic or religious groups are, on average, more
likely than not to be favorably disposed to a client's kind of cause? As
a zealous advocate in an adversary system, the lawyer may, and arguably
should, consider that characteristic in determining which potential
jurors to strike. This is especially true where, as in Missouri, little
trial time is given to allow the lawyers to question jurors extensively
to determine their actual individual attitudes. The lawyers gain some
minimal information about jurors' attitudes and perceptions in the voir
dire examination, but usually not enough to counter the preconceived
notions that the lawyer brings to the courtroom.
The peremptory challenge brings up a tension between
two of a prosecuting attorney's ethical duties -- the duty zealously to
represent the client(FN2) and the duty to seek justice, not merely to
convict.(FN3) If the enforcement of Batson is lax, then it is
fairly easy for the prosecuting attorney to let the duty zealously to
represent the client override the duty to seek justice. Preventing
racial discrimination in jury selection is part of seeing that justice
is done. See Berger v. United States, 295 U.S. 78, 88 (1935). But
this part of justice may not be done where the prosecutor believes that
justice requires conviction of the defendant, although this belief
should not trump other ethical norms.
When prosecutors use their peremptory challenges to
strike African-Americans from the jury panel, a Batson challenge
frequently results. The burden is placed upon a prosecutor to give a
racially neutral reason for the strike. State v. Jones, 979 S.W.2d
171, 185 (Mo. banc 1998). Accepted racially neutral reasons may include
that a juror seemed "uncommunicative," or "never cracked a smile."
Batson, 476 U.S. at 106, (Marshall, concurring opinion). If such
reasons are sufficient to justify the prosecutor's strikes, then the
protection of Batson is illusory, just as Justice Marshall
predicted. Id. Moreover, the question of race may be inextricably
bound up in other attributes of a prospective juror, employment status,
for example, that may justify the strike. Appellate decisions, to
illustrate the example, have upheld exclusion of African-Americans
because of employment as postal workers. See State v. Pepper,
855 S.W.2d 500, 503 (Mo. App. 1993), and State v. Hudson, 822 S.W.2d
477, 481 (Mo. App. 1991). I am not sure I understand what an
attorney would have against postal workers, but it is a more or less
Examining this Court's death penalty cases from the
state's three largest jurisdictions, the city of St. Louis, St. Louis
County, and Jackson County since the death penalty was reinstated in
1977, the following are found: 12 of 26 cases in the City of St. Louis,
seven of 17 cases in St. Louis County, and four of 12 cases in Jackson
County contained Batson challenges. None of Batson
challenges were successful on appeal. In examining all reported criminal
appeals since 1995 that contain Batson challenges, it appears
that there have been about 100 such cases. Of those concerning race, two
were remanded to the trial court to conduct a proper Batson
hearing.(FN4) Only one reported case was found that was remanded for new
trial because the appellate court sustained the Batson challenge.(FN5)
If Batson has any effect in this state, it is simply trial court
law where even rumors of sustained Batson challenges are hard to
Large-scale empirical studies seem to be lacking as
to the effect of Batson on racial discrimination. But studies
examined to date show either no effect or only a very limited effect on
the use of peremptory challenges to discriminate. David C. Baldus,
The Use of Peremptory Challenges in Capital Murder Trials: A Legal and
Empirical Analysis, U. Pa. J. Const. L., February, 2001, at
34. A study of capital murder cases tried by juries over a 16-year
period in Philadelphia found that Batson had no effect on
prosecutorial strikes against African-American venire members. Id.
Apparently the most substantial effect of Batson
in Missouri, I regret to say, has been to call into question the actions
of the two trial judges in this case. In addition to the opinions in
this case, see State v. Smulls, 935 S.W.2d 9 (Mo. banc
1996) and Smulls v. State, 10 S.W.3d 497 (Mo. banc 2000). It is a
matter of unfortunate irony that Batson apparently has had little
or no effect on preventing racial discrimination in the use of
The only way to eliminate completely racial profiling
in jury selection is to eliminate the peremptory challenge. Justice
Marshall advocated this position in Batson, 476 U.S. at 107, and
Justice Goldberg hinted at elimination of the peremptory challenge in
his dissent in Swain v. Alabama, 380 U.S. 202, 244 (1965).
Complete elimination of the peremptory challenge is a
drastic remedy, and one that I am reluctant to espouse. Instead of
complete elimination, the legislature might consider at least a drastic
curtailment of the number of peremptory challenges. Section 494.480
allows nine peremptory challenges per side in death penalty cases. These
strikes occur after the challenges for cause remove any prospective
jurors who would not impose capital punishment.(FN6) So, in each case
there is a panel of citizens who have indicated that they will be able
to impose the death penalty if the facts justify it. Then, from that "death
penalty qualified" group, the state is permitted to strike nine of the
prospective jurors for no reason.
This may eliminate just about everyone who might even
look like they could give a capital defendant the benefit of a
reasonable doubt. Does the state really need to strike nine of its
citizens in order for the state to receive a fair trial, even after a
jury panel is "death penalty qualified?"
A system that allows many peremptory challenges is
open to manipulation by the defense as well. The popular press has many
examples. See Dominick Dunne, Justice: Crimes, Trials and
Punishments (2001). Perhaps, as Dunne reports, the prosecutor wants "twelve
fascists," and defense counsel wants "twelve bleeding-heart liberals or
weirdos, with the assumption that they will arrive somewhere in between."
Id. at 15. Is the result really a fair trial before a jury drawn
from a reasonable cross-section of the community?
In cases that may involve imprisonment, but not death,
each side is given six peremptory challenges, and two per side where
there would be no prison sentence. In a death penalty case, at least 18
citizens(FN7) show up and undergo voir dire examination and are sent
away for no stated reason. This is a waste of time. For a juror to
discern that his or her race may have been a factor is to add insult to
the waste-of-time injury. This is not a proper way for the state to
treat its citizens, especially those who come when summoned for service.
If we, as a democratic society, believe the jury system is essential,
then we ought to foster respect for this service. See State ex
rel. Linthicum v. Calvin, __S.W.3d __, (Mo banc 2001) (separate
opinion of Wolff, J.).
We depend on the challenge for cause to remove
prospective jurors who are biased or otherwise unsuitable for a
particular case. The benefit of the peremptory strike is that it helps
ensure a fair trial when the trial judge is wrong in overruling a
challenge for cause. In light of the deference appropriately given to
trial court rulings, a trial judge can be incorrect in overruling a
challenge for cause without committing reversible error. But how many
safety valves are needed for a fair trial? Nine or even six peremptory
challenges seem wildly excessive. On challenges for cause, as in many
other trial events, the correctness of trial court rulings is
appropriately assumed. One or two peremptory challenges should be enough.
If the number of peremptory challenges were reduced
to one or two, juries in racially diverse counties would more likely be
representative of the community. More importantly, such a move would
drastically reduce the often subtle yet always insidious racial
discrimination inherent in many peremptory challenges.
FN1. The Gallup Poll last year noted, in
reporting on public support for the death penalty: "Traditionally, non-whites
have been much less supportive than whites, which is not surprising
given the attention that has been paid to racial disparities in death
sentencing. Roughly 70% of whites favor the death penalty in recent
polls, while less than a majority of non-whites do." Jeffrey M. Jones,
Two-Thirds of Americans Support the Death Penalty, Gallup Poll
News Service (March 2001).
FN2. State v. Johnson, 702 S.W.2d 65,
69 (Mo. banc 1985).
FN3. See generally Comment to Missouri Rule
4-3.8. (Rules of Professional Conduct).
FN4. State v. Nathan, 992 S.W.2d 908 (Mo.
App. 1999), and State v. Dunn, 889 S.W.2d 65 (Mo. App. 1994).
FN5. State v. Davis, 894 S.W.2d 703 (Mo.
FN6. A prospective juror is removed for cause
if his or her views would "prevent or substantially impair the
performance of his duties as a juror . . . ." State v. Six, 805
S.W.2d 159, 166 (Mo. banc 1991), citing Wainwright v. Witt, 469
U.S. 412, 424 (1985).
FN7. The number is usually more than 18
because peremptory challenges are also allowed when alternate jurors are
being selected. It is possible, but not likely, that some peremptory
challenges will be unused.
Opinion Concurring in Part and Dissenting in Part by Judge Stith:
I agree with the principal opinion's determination
that Mr. Smulls has not shown that counsel was ineffective in failing to
present gunshot residue evidence or further evidence of mitigating
circumstances, or in advising Mr. Smulls not to testify. I also agree
that he has not shown an entitlement to an evidentiary hearing on the
post-conviction claims as to which no hearing was granted.
I disagree with the principal opinion's determination
whether to grant Mr. Smulls post-conviction relief due to the appearance
of impropriety created by the comments of Judge Corrigan at the trial
and following this Court's initial opinion in this case, State v.
Smulls, 935 S.W.2d 9 (Mo. banc 1996) (Smulls I).
As set out below, whether or not Judge Corrigan was in fact biased, his
comments themselves caused an appearance of impropriety. This should
have led this Court to order postconviction relief in Smulls I
rather than remanding for a further hearing, for, as Smulls I
itself noted, the standard for whether a judge should recuse himself
or herself is not whether the judge is shown to be biased in fact, but
whether, based on the judge's conduct or comments:
935 S.W.2d at 17.(FN1)
Judge Corrigan's comments have been set out at length
above, and no purpose would be served by repeating them here. What can
be said is that, assuming that Judge Corrigan's subjective intent in
making the remarks was an innocuous one, his remarks nonetheless provide
factual grounds on which a reasonable person could find the appearance
of impropriety and doubt the impartiality of the judge. To suggest
otherwise simply ignores the fact, as stated in Smulls I,
Smulls I, 935 S.W.2d at 26. It
also ignores the wisdom, amply demonstrated by the subsequent history of
this very litigation, of strictly adhering to a standard of recusal
based solely on the reasonable appearance of impropriety. That is
why a "judicial statement -- on the record or off -- that raises a
genuine doubt as to the judge's willingness to follow the law, provides
a basis for recusal or, if the judge refuses to recuse, reversal on
appeal." State v. Kinder, 942 S.W.2d 313, 322 (Mo. banc 1996).
Applying these principles here, no one familiar with
the continuing saga of this case could deny that the June 1996 decision
in Smulls I, and the subsequent history of this case, have
engendered great controversy. Immediately following the initial decision,
members of the bar took conflicting positions as to whether the facts
created an appearance of impropriety of Judge Corrigan and whether he
was being treated fairly by this Court. Over the following three and one-half
years, a new hearing was held before Judge O'Brien on the issues
presented by Mr. Smulls' Rule 29.15 hearing, and the judge concluded
that Judge Corrigan was not biased and Mr. Smulls was not entitled to
On appeal, Smulls v. State, 10 S.W.3d 497 (Mo.
banc 2000) (Smulls II), did not reach the issue of Mr. Smulls'
entitlement to post-conviction relief, or even directly address Judge
Corrigan's alleged improper comments at the trial. Smulls II
addressed issues raised by the very publicity that surrounded this
Court's decision in Smulls I, to wit, whether allowing
Judge O'Brien to preside over the Rule 29.15 hearing itself created an
appearance of impropriety because of Judge Corrigan's public statements
castigating members of this Court and stating that he had discussed
Smulls I with all the judges of the circuit, including Judge
O'Brien, and they had agreed with him that it was wrong.
This Court held in Smulls II that these
conversations provided a basis on which "a reasonable person could doubt
the impartiality of" Judge O'Brien. 10 S.W.3d at 504. The ensuing
controversy among members of the bar and community confirmed that this
was the case. While Judge O'Brien indicated that he could be impartial,
and many in the community said they thought he could be impartial, and
that they believed that Judge Corrigan himself was not biased and had
not shown bias by his comments, others publicly disagreed. But, whether
Judge O'Brien or Judge Corrigan were in fact impartial or believed
themselves to be is not the issue. A judge cannot judge his own
impartiality and the appearance of impropriety cannot be determined by a
show of hands. The standard for recusal is whether the facts give
reasonable people grounds for doubting the court's impartiality.
Now Mr. Smulls' appeal is before this Court yet a
third time, some two years after the decision in Smulls II
and five and one-half years after the decision in Smulls I.
Yet, most of the principal opinion is again directed not to the issue of
Mr. Smulls' guilt or punishment, but to the issues of (1) the propriety
and appearance of propriety of Judge Corrigan; (2) the propriety and
appearance of propriety of Judge O'Brien in presiding over a hearing
into the propriety of his colleague's conduct; and (3) the propriety of
the rulings of Judge Hartenbach in presiding over the hearing into the
propriety of the conduct of Judge O'Brien in presiding over the hearing
into the propriety of Judge Corrigan's conduct.
The route this case took to get here is more
circuitous than the most complex tongue-twister. Whatever else this
series of events serves to show, it demonstrates the wisdom of the
teachings of prior cases that doubts as to the appearance of impropriety
should be resolved in favor of recusal. Otherwise, as occurred here, the
focus will become the conduct and character of the judge, whereas the
focus should be fairness of the trial of the defendant.
Due to this loss of focus, both the reputations of
various judges and Mr. Smulls' right to a new trial have unfairly been
left in doubt for over five years, and the fairness and impartiality of
the Missouri judicial system has been repeatedly called into question.
It is to avoid just this type of situation that recusal should be
ordered where the facts raise even the appearance of impropriety in the
eyes of a reasonable person. This Court should have directed in
Smulls I that Mr. Smulls' Rule 29.15 motion be granted. I would
so hold now, and remand so that a new trial can be held. This fact
scenario simply should not be permitted to continue.(FN2)
For the reasons set out above, I concur in part and
dissent in part.
FN1. Accord, State v. Jones, 979 S.W.2d
171, 177-78 (Mo. banc 1998); State v. Kinder, 942 S.W.2d 313, 312
(Mo. banc 1996); State v. Nunley, 923 S.W.2d 911, 918 (Mo. banc
1996); State v. Dodd, 944 S.W.2d 584, 586 (Mo. App. S.D. 1997);
Graham v. State, 11 S.W.3d 807, 813 (Mo. App. S.D. 1999).
FN2. I also disagree with the principal
opinion's statement that in order to disqualify Judge O'Brien, Mr.
Smulls was required to show that Judges O'Brien and Corrigan had a "special
relationship." While a special relationship would, of course, give a
reasonable person "factual grounds to find an appearance of impropriety
and doubt the impartiality of the court," Smulls I, 935 S.W.2d
at 17, so, too, would the presence of other facts that reasonably
called into question the judge's impartiality. I believe the principal
opinion really intends to espouse a narrower principal: that merely
being a member of the same circuit as another judge is not a basis for
recusal. To create doubt as to impartiality, there must be some "plus
factor," such as, but not limited to, a special relationship of the
judges. With this narrower principle, I fully agree.
Herbert L. Smulls