Ricky Lee Grubbs, Appellant,
v.
Paul Delo, Appellee.
No. 90-1664
Federal
Circuits, 8th Cir.
January 31, 1992
Before BEAM, Circuit Judge,
BRIGHT, Senior Circuit Judge, and WOODS,
District Judge.
BEAM, Circuit Judge.
Ricky Lee Grubbs was convicted of capital murder
by the state of Missouri and sentenced to death. He
appeals the district court's denial of his habeas
petition. We affirm the judgment of the district
court.
I. BACKGROUND
On February 16, 1984, fire
fighters were called to the scene of a mobile home
fire in Miner, Missouri. They discovered the body of
Jerry Russell Thornton inside the mobile home.
Thornton's hands and feet were bound with neckties
and he had suffered massive injuries: thirteen
broken ribs, a cracked sternum, a laceration of the
liver, damage to the small intestine, abrasions and
lacerations on the face, a broken nose, a brain
hemorrhage, and a large laceration of the neck,
extending from the trapezius muscle to nearly the
front of the left side of the neck.
The following day, Ricky Grubbs
and his brother, Randy Grubbs, were arrested. The
day after his arrest, Ricky Grubbs confessed to
killing Thornton. In his written confession, Grubbs
stated that he and his brother went to Thornton's
trailer home on the afternoon of February 15. (Both
brothers were acquainted with Thornton.)
Grubbs said that he and his
brother had been drinking beforehand and that
Thornton was drinking when they arrived. According
to Grubbs, shortly after they arrived, Thornton said
that he did not like Grubbs and wanted him to leave.
Grubbs said Thornton then came toward him and he
became scared and struck Thornton repeatedly. When
Thornton fell to the floor, Grubbs and his brother "hog-tied"
him with some of Thornton's neckties and Grubbs cut
Thornton's neck with a knife. Before leaving the
trailer home, the brothers took thirty dollars and
some food stamps. Grubbs stated in his confession
that he and his brother returned the following day
and set the fire to destroy any evidence that might
incriminate them.
In November 1985, after a
pretrial hearing, the Missouri circuit court
determined that Grubbs's confession would be
admissible as evidence. A trial was held a few weeks
later, in December, and Grubbs testified in his own
defense. The proceedings, however, resulted in a
mistrial when one juror, during a poll of the jury
after it had submitted its verdict to the court,
denied that the guilty verdict was his. A change of
venue was granted and a second trial was held in
March 1986. Grubbs did not testify at this trial,
but his confession--which was essentially the only
direct evidence that he had committed the crime--was
admitted against him.
The jury convicted Grubbs of capital murder and he
was sentenced to death.
In February 1987, the Missouri
Supreme Court affirmed the judgment on direct
appeal. State v. Grubbs, 724 S.W.2d 494 (Mo.) (en
banc), cert. denied,
482 U.S. 931 , 107 S.Ct. 3220, 96 L.Ed.2d 707
(1987). Grubbs then filed a motion for post-conviction
relief pursuant to Missouri Supreme Court Rule 27.26
(repealed effective January 1, 1988; now governed by
Rule 29.15). The post-conviction court denied relief
and the Missouri Supreme Court affirmed this
judgment in November 1988. Grubbs v. State, 760 S.W.2d
115 (Mo.1988) (en banc), cert. denied,
490 U.S. 1085 , 109 S.Ct. 2111, 104 L.Ed.2d
672 (1989). In June 1989, Grubbs filed a
petition for writ of habeas corpus, pursuant to 28
U.S.C. 2254 (1988).
In late 1989, the district court
issued an unpublished order and memorandum finding a
number of Grubbs's claims to be procedurally barred.
Grubbs v. Delo, No. 89-1048C(1), Order and
Memorandum (E.D.Mo. Dec. 27, 1989). In April 1990,
the district court issued a published order and
memorandum addressing the merits of Grubbs's
remaining claims and denying his petition. Grubbs v.
Delo, 734 F.Supp. 395 (E.D.Mo.1990).
II. DISCUSSION
Our task in reviewing Grubbs's
claims is made much easier by the district court's
excellent memoranda. In fact, because the district
court did its work very thoroughly and competently--and
because many of Grubbs's claims are without merit--it
is unnecessary for us to discuss at length several
issues raised by Grubbs on appeal. Instead, we will
address those matters that we believe contain
Grubbs's most meritorious claims and those issues
that are affected by cases decided since the
district court's decision.
A. Double Jeopardy
Grubbs argued in the district
court that his second trial violated the double
jeopardy clause of the Fifth Amendment. The district
court determined that the disposition of this issue
by the Missouri post-conviction trial court rested
on an adequate and independent state procedural bar.
Grubbs argues on appeal that the state procedural
bar was not adequate. There may be some merit in
Grubbs's argument, and we will discuss this aspect
briefly, but if we cut through the procedural-bar
chaff, so to speak, we find no merit in the
underlying constitutional claim.
It is a basic doctrine of law
that if a state court's resolution of an issue rests
on a state law procedural ground that is "independent"
of federal law and "adequate" to support the state
court's judgment, a federal court will not review
the issue in a habeas action. See Coleman v.
Thompson, --- U.S. ----, 111 S.Ct. 2546, 2553-54,
115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S.
255, 262, 109 S.Ct. 1038, 1042-43, 103 L.Ed.2d 308
(1989). The difficulty in applying this doctrine, of
course, lies in determining what constitutes an
adequate and independent state law ground. For our
purposes, it will suffice to state two guiding
principles. First, a state court's discussion
resolving an issue need not be confined entirely to
the state law ground: if a state court addresses the
merits of a federal claim in an alternative holding,
the adequate and independent state-ground doctrine
will still preclude federal habeas review. See
Harris, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n.
10. Second, a state procedural rule is not adequate
unless it is strictly or regularly adhered to. If a
state applies its rule inconsistently, we are not
barred from reaching the federal law claim. See
Coleman, 111 S.Ct. at 2568-69 (White, J., concurring);
Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct.
1981, 1987, 100 L.Ed.2d 575 (1988).
The state post-conviction trial
court stated the following in response to Grubbs's
double jeopardy claim:
This claim is not one properly
cognizable in a 27.26 motion as it is a motion which
could have been properly reviewed upon appeal.
Bradford vs. State, 694 S.W.2d 760, 761 (Mo.App.1985).
Further, that Movant's constitutional rights were
not violated by having a second trial in this
instance. For the reason that the trial court's
ruling was justified by manifest necessity. State
vs. Franks, 702 S.W.2d 853, 856 (Mo.App.1985).
Respondent's Exhibit J, at 83 (decision
of St. Francois County Circuit Court). The district
court determined that the first sentence quoted
above constitutes an adequate and independent state
procedural bar--that is, issues not raised on direct
appeal in Missouri are not cognizable if raised for
the first time in post-conviction proceedings. The
last two sentences, according to the district court,
merely state an alternative federal law holding.
Grubbs argues that the first
sentence is not an adequate procedural bar because
the post-conviction trial court failed to recognize
an exception to the procedural rule for double
jeopardy claims. We believe that there may be some
problem with the adequacy of the state-law ground.
There is some indication that the Missouri courts
have not consistently followed their procedural rule.
But there is no need for us to work through the
Missouri case law to resolve the question of the
adequacy of the state-law ground for the procedural
bar, for in the final analysis there is no merit to
Grubbs's claim that his second trial was in
violation of the double jeopardy clause. As we
explained in the background, Grubbs requested a
mistrial after a juror in his first trial stated
during a poll that the guilty verdict "was not his
separate, individual verdict." Respondent's Exhibit
B, at 9. This decision to request a mistrial was not
a Hobson's choice for Grubbs. Under Rule 29.01(d) of
the Missouri Rules of Criminal Procedure, the trial
judge could have either discharged the jury or
directed it to retire for further deliberations. As
a general rule, absent prosecutorial or judicial
overreaching--neither of which is alleged in this
case--a motion by a "defendant for mistrial is
ordinarily assumed to remove any barrier to
reprosecution." United States v. Jorn, 400 U.S. 470,
485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971).
Therefore, the double jeopardy clause was not
violated by Grubbs's second trial.
B. Grubbs's Confession
Grubbs argued in the district court that his
counsel on direct appeal was constitutionally
ineffective, under the standard of Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), for failing to argue to the Missouri
Supreme Court that his confession was inadmissible.
The district court determined that Grubbs had
procedurally defaulted on this claim in state court
and that no excuse exists to overcome the procedural
bar. Grubbs does not deny on appeal that he
procedurally defaulted, but he argues that the
district court erred because "cause" for the default,
under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct.
2497, 53 L.Ed.2d 594 (1977), exists in his post-conviction
trial counsel's ineffective assistance. We find no
merit in Grubbs's underlying claim.
At the outset, we note that
Grubbs does not explain, in any detail, why his
confession was inadmissible.
We gather from oral argument and Grubbs's brief that
his principal contention is that his confession was
unconstitutionally obtained as a result of
questioning after he had invoked his right to remain
silent. Grubbs, however, also seems to make an
argument that the confession was unconstitutionally
obtained as a result of questioning after he had
requested an attorney. Before we can determine
whether Grubb's counsel on direct appeal was
ineffective under Strickland for failing to argue
that Grubbs's confession was inadmissible, and
before we can determine whether post-conviction
trial counsel's failure to argue the ineffectiveness
of direct-appeal counsel constitutes "cause" under
Wainwright, we examine the circumstances surrounding
Grubbs's confession. If there is no basis for
claiming that his confession was inadmissible,
Grubbs's counsel on direct appeal cannot be
considered ineffective for having failed to argue a
meritless issue before the Missouri Supreme Court.
See Meyer v. Sargent, 854 F.2d 1110, 1115-16 (8th
Cir.1988) (no prejudice under Strickland when
counsel on direct appeal fails to raise a meritless
issue). Therefore, a brief background on Grubbs's
claim is necessary for a full and clear resolution
of this issue.
Before trial, Grubbs filed a
motion to suppress his confession. This motion
claimed, inter alia, that his confession had been
unconstitutionally obtained as a result of continued
questioning by law enforcement officers after he had
invoked his right to remain silent and after he had
requested an attorney. Respondent's Exhibit B, at
24-27; see also Respondent's Exhibit A, at 82-84.
The Missouri trial court held a hearing on Grubbs's
motion, at which the testimony of Grubbs, the county
sheriff, and others revealed the following events
leading up to Grubbs's confession.
Grubbs was arrested at about 8:30
p.m. on Friday, February 17, 1984. Respondent's
Exhibit A, at 24. (His brother Randy had been
arrested earlier that day and was held in custody at
another location. Id. at 19.) When Grubbs was
brought into custody, the county sheriff read a
Miranda warning to him. Id. at 21, 63. According to
Grubbs's testimony, he refused to answer any
questions and requested an attorney. Id. at 63.
There is some indication in Grubbs's testimony that
questioning by the sheriff continued after this
point.
Id. According to the sheriff's testimony, Grubbs
invoked his right to remain silent, but he did not
request an attorney. Id. at 18, 25. (It is not clear
from the sheriff's testimony, whether any
questioning of Grubbs continued after Grubbs had
invoked his right to remain silent.) Following this
brief encounter (described by Grubbs as lasting "a
little while"), Grubbs was placed in a cell
overnight. Id. at 63.
The following day, at about 1:30
p.m., the sheriff and Grubbs met again. According to
Grubbs, the sheriff initiated the meeting, asked him
if he wanted to make a statement, and he refused. Id.
at 64-65. At the pretrial hearing, the sheriff did
not remember whether Grubbs initiated this meeting,
but the sheriff testified that Grubbs did not refuse
to make a statement. Id. at 25-26. According to the
sheriff, Grubbs simply wanted to talk to his brother.
Id. There is no dispute that after this brief
encounter, Grubbs did speak to his brother, Randy,
on the telephone (apparently to confirm whether
Randy had been cooperating in the investigation). Id.
at 64-65. According to Grubbs's testimony, his
brother informed him that he was cooperating with
officials. Id. at 65. After the telephone call,
according to Grubbs, the sheriff asked him again if
he wanted to make a statement and Grubbs told him
no. Id. at 66. Grubbs was then promptly placed back
in his cell with no further questioning. (Grubbs
testified, "I said, 'No I don't want to [talk].' So
he [the sheriff] took me and locked me back up." Id.)
At about 3:30 p.m., according to the sheriff's
testimony, Grubbs told him that he wanted to make a
statement. Id. at 19. The sheriff testified that he
then read the Miranda warning to Grubbs again,
Grubbs signed a written waiver of his rights, and
Grubbs confessed to the crime in a written statement.
Id. at 15-20. It is not clear from the record
whether Grubbs contacted the sheriff and volunteered
the confession or whether it was in response to
further questioning.
Two weeks after the pretrial
hearing, the trial judge denied Grubbs's motion to
suppress his confession. The trial court made a
ruling as follows: "[T]he court finds that the
statements [of Grubbs] were given after a knowing [and]
intelligent waiver of his rights were made [and]
after his Miranda warnings were given to him
explaining his constitutional rights. The [court]
finds his statements were not coerced from him nor
were they a result of a product of an illegal arrest."
Respondent's Exhibit B, at 6 (Docket Sheet Entry,
Circuit Court, Perry County, Mo., Nov. 27, 1985).
Grubbs's statement to the sheriff was admitted as
evidence against him (in fact, at his trial in March
1986, it was, as earlier indicated, the only direct
evidence introduced to show that he had murdered
Thornton).
At the conclusion of Grubbs's
trial, his trial counsel raised the issue of the
admissibility of the confession again in a motion
for a new trial, thus preserving the issue for
appeal. See Respondent's Exhibit B, at 145. On
direct appeal, however, Grubbs's new counsel did not
include the claim in Grubbs's brief and, as a result,
the issue was not addressed by the Missouri Supreme
Court. In post-conviction trial court, instead of
alleging ineffective assistance of counsel on direct
appeal, Grubbs argued that his counsel at trial was
ineffective for not arguing that his confession was
inadmissible. See Respondent's Exhibit J, at 2-9,
14-23 (pro se post-conviction petition and amended
petition). The post-conviction trial court noted
that Grubbs's trial counsel had in fact argued
against the admission of Grubbs's confession. The
court concluded that Grubbs's trial counsel was not
constitutionally ineffective. See id. at 78-79. On
post-conviction appeal, the Missouri Supreme Court
affirmed and stated:[N]either movant's pro se 27.26
nor his amended motion allege ineffective assistance
of appellate counsel for failure to raise the
admissibility of the defendant's statement on direct
appeal. "It is fundamental that issues not raised in
a Rule 27.26 motion may not be considered on
appeal." Walker v. State, 715 S.W.2d 261, 262 (Mo.App.1986).
Grubbs, 760 S.W.2d at 120 (emphasis
added).
In his federal habeas petition,
Grubbs claimed that his counsel on direct appeal was
constitutionally ineffective for failing to argue
that his confession was inadmissible. The district
court decided that the resolution of the issue by
the Missouri Supreme Court rested on an adequate and
independent state ground. The district court also
held that the failure of Grubbs's post-conviction
trial counsel to raise the issue cannot constitute
cause because no constitutional right to counsel
exists in state post-conviction proceedings. See
Grubbs, Order and Memorandum, at 1461 n. 1.
As Grubbs correctly notes, a few
months after the district court issued its final
order and memorandum this court expressly stated
that "ineffective assistance of post-conviction
counsel can be 'cause' for purposes of lifting a
procedural bar." Simmons v. Lockhart, 915 F.2d 372,
376 (8th Cir.1990) (emphasis added). This rule is
brought into question by the Supreme Court's recent
opinion in Coleman v. Thompson. We will not, however,
address that issue here because it is clear that
there is simply no merit to Grubbs's underlying
claim that his confession was inadmissible.
First, we note the relevant
principles of law. In Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the
Supreme Court "established a number of prophylactic
rights designed to counteract the 'inherently
compelling pressures' of custodial interrogation,
including the right to have counsel present. Miranda
did not hold, however, that those rights could not
be waived." McNeil v. Wisconsin, --- U.S. ----, 111
S.Ct. 2204, 2208, 115 L.Ed.2d 158 (1991). If the
state can establish that the suspect "knowingly and
intelligently waived his privilege against self-incrimination
and his right to retained or appointed counsel," his
statements elicited during questioning are
admissible. Miranda, 384 U.S. at 475, 86 S.Ct. at
1628. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct.
1880, 68 L.Ed.2d 378 (1981), the Supreme Court held
that once a suspect asserts a right to counsel, the
interrogation must cease and he cannot be approached
for further questioning "until counsel has been made
available to him." Id. at 484-85, 101 S.Ct. at 1885.
If questioning does resume, "the suspect's
statements are presumed involuntary and therefore
inadmissible as substantive evidence at trial, even
where the suspect executes a waiver and his
statements would be considered voluntary under
traditional standards." McNeil, 111 S.Ct. at 2208.
If a suspect exercises the right to remain silent,
but does not request counsel, subsequent statements
are admissible if law enforcement officers "scrupulously
honored" the suspect's right to remain silent.
Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct. 321,
326, 46 L.Ed.2d 313 (1975).
Second, we note the standard
under which we determine the facts as they apply to
Grubbs's claim. As we recently explained in Hill v.
Lockhart, 927 F.2d 340 (8th Cir.1991), under the
Supreme Court case of Miller v. Fenton, 474 U.S.
104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985),
[t]he admissibility of a
defendant's confession is a mixed question of law
and fact and as such merits independent
consideration by a federal court in a habeas
proceeding. However, "subsidiary factual questions
such as ... whether the police in fact engaged in
the intimidation tactics alleged by defendant,"
involved in a state court's determination of
voluntariness are factual determinations entitled to
the presumption of correctness under 28 U.S.C.
2254(d) (1988).
Hill, 927 F.2d at 346 (quoting
Miller, 474 U.S. at 112, 106 S.Ct. at 450-51).
Applying these principles to
Grubbs's case, it becomes clear that there is no
merit to Grubbs's assertion that his confession was
inadmissible (thus, his counsel on direct appeal
could not have been ineffective for failing to argue
the issue). The trial court expressly ruled that
Grubbs gave his confession "after a knowing [and]
intelligent waiver of his rights." The judge did not
make an explicit factual finding on whether Grubbs
asked for an attorney, but the implication of the
court's ruling is that the court decided Grubbs had
not made such a request, thus believing the
sheriff's testimony and not Grubbs's. See Winford v.
Swenson, 517 F.2d 1114, 1118 (8th Cir.1975)
("federal courts sitting in habeas corpus may, in
the absence of clear expression by the state court,
reconstruct implied findings of fact and interpolate
the constitutional criteria applied"). We must
accept such a factual finding by the state court, so
no violation of the rule established in Edwards can
be said to exist. Likewise, after a careful review
of the record, we can see no violation of Mosley; we
believe that Grubbs's right to remain silent was
scrupulously honored by the police. We also agree
with the trial court's finding that Grubbs's
statement was not coerced from him.
C. Error of Attorney on State
Post-Conviction Appeal
Grubbs argued in the state post-conviction
trial court that his trial counsel was
constitutionally ineffective for failing to conduct
a reasonable investigation into witnesses who could
testify that he was intoxicated on the day of the
crime and, thus, establish that he was incapable of
forming the requisite intent to commit capital
murder. Again, the post-conviction court was the
first forum in which Grubbs could effectively raise
the ineffective assistance claim. Following an
evidentiary hearing, the post-conviction trial court
concluded that Grubbs's trial counsel had not been
ineffective. See Respondent's Exhibit J, at 74-75.
Grubbs did not pursue the issue on post-conviction
appeal.
In his federal habeas petition,
however, Grubbs again argued that his trial counsel
was constitutionally ineffective for failing to
reasonably investigate the availability of possible
witnesses. The district court ruled that Grubbs's
failure to pursue this issue on state post-conviction
appeal constituted a procedural default that bars
review in federal habeas. The district court
rejected Grubbs's argument that ineffective
assistance of counsel on post-conviction appeal can
constitute cause to overcome the procedural default.
On appeal to our court, Grubbs does not deny that a
procedural default occurred, but he argues that the
district court erred on the issue of cause. We
disagree and base our analysis and conclusion on the
Supreme Court's recent decision in Coleman v.
Thompson.
The issue resolved in Coleman, in
fact, is nearly identical to the one raised by
Grubbs. Coleman argued in state habeas trial court
that his counsel was constitutionally ineffective
during trial, sentencing, and direct appeal. Under
state procedural law, the state habeas trial court
was the first forum in which Coleman could raise an
ineffective assistance claim. Coleman, 111 S.Ct. at
2567. After holding an evidentiary hearing, the
state habeas court ruled against Coleman. Coleman's
attorney then filed a notice of appeal from the
court's judgment. The notice, however, was filed
three days past the deadline established by state
court procedures and the state supreme court
eventually dismissed the appeal on that basis.
Id. at 2552-53. In federal habeas, Coleman argued
that his attorney's error in failing to file a
timely appeal constituted ineffective assistance of
counsel and thus cause for the procedural default.
Id. at 2567.
The Supreme Court considered
Coleman's claim in two parts. In the first part, the
Court reviewed in general the circumstances under
which an attorney's error can constitute cause. It
noted that states are not constitutionally obligated
to provide counsel in state post-conviction
proceedings. Id. at 2566-67; see Pennsylvania v.
Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539
(1987) (no constitutional right to an attorney in
post-conviction proceedings); Murray v. Giarratano,
492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (applying
Finley to capital cases). Thus, a petitioner "must
bear the burden of a failure to follow state
procedural rules" because the error cannot be
imputed to the state. Coleman, 111 S.Ct. at 2567.
In the second part, the Court
considered Coleman's argument that there must be
some exception for those cases involving
constitutional claims that can only be raised in
state post-conviction proceedings. "[A]t least as to
these claims," Coleman argued, "attorney error in
state habeas must constitute cause." Id. The Court
declined to consider this question broadly because
one state court--the state habeas trial court--had
addressed Coleman's claim and the effectiveness of
Coleman's counsel before that court was not at issue.
The Court explained that indigent criminal
defendants have a right to appointed counsel "in [their]
first appeal as of right" in state court and that
that "right encompasses a right to effective
assistance of counsel." Id. at 2568. Thus, because
the state habeas trial court considered Coleman's
claim, and he was represented by counsel which he
did not claim was ineffective, he "had his 'one and
only appeal' " as of right. Id. In other words,
Coleman's state collateral evidentiary hearing was
the functional equivalent of the one appeal to which
every defendant is entitled; and, because the right
to counsel does not extend beyond the first criminal
appeal of right, Coleman cannot claim a right to
effective assistance of counsel in his appeal from
the state habeas trial court's decision.
All this results in the same
conclusion for Grubbs. The Missouri post-conviction
trial court held an evidentiary hearing to consider
his claim of ineffective assistance of trial counsel,
and it denied his claim. He cannot claim to be
entitled to a right to effective assistance on
appeal from that determination. Cause cannot exist.
His claim fails.
D. Lesser-Included Offense
Instruction
Grubbs argues that he was denied
due process, under the Eighth and Fourteenth
Amendments, when the state trial court failed to
instruct the jury on a lesser-included offense of
felony murder (i.e., murder in the course of theft).
This is a different claim than Grubbs presented
below. In the district court, Grubbs claimed that
his post-conviction trial counsel was
constitutionally ineffective for "failing to make an
argument concerning instructional error." Grubbs,
Order and Memorandum, at 5. The district court ruled
that Grubbs's claim "is not cognizable on a federal
habeas corpus action." Id. (relying on Williams v.
Lockhart, 849 F.2d 1134, 1139 (8th Cir.1988).)
Grubbs's failure to present his due process claim to
the district court precludes appellate consideration
of the issue. See Warden v. Wyrick, 770 F.2d 112,
114 (8th Cir.1985).
E. Supporting Evidence for Two
Aggravating Circumstances
In the district court, Grubbs
argued that two of the three statutory aggravating
circumstances found to exist by his sentencing jury
were not supported by the evidence and thus were
improperly submitted to the jury. Grubbs argued
further that as a result of this impropriety his
death sentence should be vacated. The two
aggravating circumstances were: (1) that Grubbs
murdered Thornton "for the purpose of receiving
money or any other thing of monetary value," and (2)
that the murder was committed "for the purpose of
preventing" Grubbs's lawful arrest. Respondent's
Exhibit B, at 131 (Jury Instruction No. 17). The
district court reviewed Grubbs's claim under a de
novo standard and agreed with Grubbs that there was
not enough evidence to submit these two aggravating
circumstances to the jury. The district court noted
a concurring opinion in Grubbs's direct appeal, by
Judge Blackmar of the Missouri Supreme Court, that
reached a similar conclusion. See Grubbs, 724 S.W.2d
at 502 (Blackmar, J., concurring). The district
court, however, did not agree with Grubbs's
contention that his death sentence should be vacated;
the court explained that the "remaining aggravating
factors might well have been sufficient to outweigh
any existing mitigating factors." Grubbs, 734 F.Supp.
at 407.
Grubbs argues on appeal that the
district court applied the wrong standard in
determining the effect of the improperly submitted
aggravating circumstances. According to Grubbs, the
district court's conclusion that the remaining
aggravating circumstances "might well have been
sufficient" is the wrong test. Grubbs argues that
under Barclay v. Florida, 463 U.S. 939, 958, 103
S.Ct. 3418, 3429, 77 L.Ed.2d 1134 (1983), the
question to be asked instead is whether "the
elimination of improperly considered aggravating
circumstances could not possibly affect the balance"
of aggravating and mitigating factors. We need not
address this question because we disagree with the
district court's conclusion that the factual record
does not support the jury's finding. We base our
analysis on the Supreme Court's decision last year
in Lewis v. Jeffers, --- U.S. ----, 110 S.Ct. 3092,
111 L.Ed.2d 606 (1990).
Jeffers, which was decided after
the district court issued its decision in Grubbs's
case, held that a federal court's review of a state
court's finding of a facially constitutional
aggravating circumstance should be under the "rational
factfinder" standard established in Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979)--not a de novo standard. Jeffers, 110
S.Ct. at 3102. The Court explained that although the
standard in Jackson was established in the context
of determining whether evidence supported the
elements of a substantive offense, the rationale for
such a standard applies just the same to state court
findings of aggravating circumstances. It is " 'the
responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from
basic facts to ultimate facts' " and this role of
the factfinder " 'as weigher of the evidence is
preserved through a legal conclusion that upon
judicial review all of the evidence is to be
considered in the light most favorable to the
prosecution.' " Id. 110 S.Ct. at 3103 (quoting
Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). After
reviewing the record, and applying the rational
factfinder standard, we conclude, as the Missouri
Supreme Court did on direct appeal, that there is
sufficient evidence to support a finding of the two
aggravating circumstances which Grubbs believes
should not have been submitted to his sentencing
jury.
The evidence is not overwhelming,
but we cannot conclude that the jury's finding was
irrational. Grubbs and his brother stole thirty
dollars and some food stamps from Thornton (both
apparently from the billfold on Thornton's body) on
the day of the murder. See Trial Transcript vol. II,
at 442. A rational juror could infer from this fact
that Grubbs and his brother went to Thornton's
trailer for the purpose of taking the money and food
stamps, and thus that Grubbs committed the murder "for
the purpose of receiving money or any other thing of
monetary value" (i.e., first aggravating
circumstance above). As the state points out in its
brief, the Missouri Supreme Court has interpreted
and applied this aggravating circumstance in just
such a way many times before, albeit usually with
more evidence to link the murder to the receipt of
money or other things of monetary value. See, e.g.,
State v. Jones, 749 S.W.2d 356, 364-65 (Mo.) (en
banc) (Judge Blackmar held aggravating circumstance
was supported by the evidence because defendant
committed the murder so that he could steal the
victim's car), cert. denied,
488 U.S. 871 , 109 S.Ct. 186, 102 L.Ed.2d 155
(1988); State v. McDonald, 661 S.W.2d 497,
502-06 (Mo.1983) (en banc) (murder that was
committed in the course of robbery came within the
ambit of the aggravating circumstance), cert. denied,
471 U.S. 1009 , 105 S.Ct. 1875, 85 L.Ed.2d 168
(1985). The inference that Grubbs and his
brother came to Thornton's trailer for the purpose
of taking Thornton's money is further supported by
the fact that Grubbs and his brother wore gloves
during the crime (although Grubbs stated in his
confession that he could not remember when they put
them on). See Trial Transcript vol. II, at 442.
The second aggravating
circumstance--that the murder was committed for the
purpose of preventing Grubbs's lawful arrest--can
also be inferred from the evidence by a rational
juror. If one infers that Grubbs and his brother
went to Thornton's home to rob him of his money, one
can also reasonably infer that Grubbs and his
brother murdered Thornton to ensure that they would
not be reported and arrested. Because the two
aggravating circumstances were properly submitted to
the jury and supported by the evidence, the jury's
balancing of aggravating and mitigating
circumstances is unchanged.
F. Mitigating Circumstances
Instruction
In the district court, Grubbs
challenged the constitutionality of a jury
instruction on mitigating circumstances under Mills
v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d
384 (1988). Grubbs argued that Instruction No. 19
violates Mills because it required that the jurors
unanimously find the existence of a mitigating
circumstance before weighing it against the
aggravating circumstances. Because Grubbs had not
presented this claim in any state court, the
district court held that he had procedurally
defaulted on the claim. The district court also
determined that Grubbs's procedural default could
not be excused.
Grubbs, 734 F.Supp. at 406. Grubbs presents two
arguments on appeal to overcome the procedural
default.
First, Grubbs argues that his
attorney's failure to raise a Mills claim
constitutes ineffective assistance of counsel and,
thus, cause for the procedural default. We disagree
and follow our recent opinion in Schlup v.
Armontrout, 941 F.2d 631 (8th Cir.1991), which
involved the same jury instruction language.
In Schlup, we held that the failure of Schlup's
trial counsel to raise a Mills claim did not
constitute ineffective assistance of counsel under
the principles of Strickland. Id. at 640. Because
Grubbs's case is indistinguishable from Schlup, his
counsel was likewise not constitutionally
ineffective. See also Gilmore v. Delo, 908 F.2d 385,
387 (8th Cir.1990) (second habeas petition;
rejecting argument that counsel's failure to object
along the lines of Mills constitutes ineffective
assistance of counsel), petition for cert. filed, (Aug.
28, 1990); Smith v. Armontrout, 888 F.2d 530, 545
(8th Cir.1989) (Mills claim, though available at
time of trial in 1981, "was not so obvious or so
likely to succeed that trial counsel can now be
charged with ineffective assistance for failing to
raise it").
Second, Grubbs argues that he can
overcome the procedural default under the probable
innocence exception of Murray v. Carrier, 477 U.S.
478, 496, 106 S.Ct. 2639, 2649-50, 91 L.Ed.2d 397
(1986).
"In the penalty-phase context, this exception will
be available if the federal constitutional error
alleged probably resulted in a verdict of death
against one whom the jury would otherwise have
sentenced to life imprisonment." Smith, 888 F.2d at
545. The burden is on Grubbs to provide an
affirmative answer to the following question: "if
the jury had been told, in compliance with Mills,
that any mitigating circumstance, even if not
unanimously found by the jury, could be weighed,
would it probably have fixed the punishment at life
in prison?" Id. In our judgment, the answer is no.
Grubbs's sentencing jury found three statutory
aggravating circumstances to exist and several other
nonstatutory aggravating circumstances (i.e., that
Grubbs had been previously convicted of four counts
of burglary, one count of stealing, theft of
property, and armed robbery). Although Grubbs's
sentencing jury was not required to specify the
mitigating circumstances that it found to exist,
from our review of the record, and given the nature
of the crime, we cannot say that the jury would have
fixed Grubbs's punishment at life if it had been
instructed in the way Grubbs argues is required
under Mills.
III. CONCLUSION
We have considered all of the
claims raised by Grubbs and find them to be either
procedurally barred or without merit. Accordingly,
the judgment of the district court is affirmed.
*****
BRIGHT, Senior Circuit Judge,
dissenting.
In my view, when the state seeks
to put a person to death upon conviction of a
capital crime, it must follow the law with a
reasonable degree of exactness and courts should not
ignore or overlook any mandate of the law.
Missouri did not do so in this
case. The state circuit court permitted the jury to
sentence Grubbs to death by execution when no
evidence existed to support two of the aggravating
circumstances: (1) that Grubbs committed murder "for
the purpose of receiving money or any other thing of
monetary value," and (2) "for the purpose of
preventing a lawful arrest" of Grubbs.
With respect to the aggravating
circumstances, here in question, all that the
Missouri Supreme Court offers are these bare
statements:
Approximately thirty dollars and
some food stamps were taken from the victim's
trailer. The next day defendant and his brother
returned to the trailer in order to set it afire and
destroy the evidence. Late that evening, the fire
department was summoned to put out the fire and
Thornton's body was discovered.
State v. Grubbs, 724 S.W.2d 494,
496 (Mo.) (en banc), cert. denied,
482 U.S. 931 , 107 S.Ct. 3220, 96 L.Ed.2d 707
(1987), and this bare conclusion that "[t]he
evidence previously recited demonstrates that a
reasonable juror could find these aggravating
circumstances to be present." Id. at 500.
Justice Blackmar's concurrence,
more to the point, states:
I am also concerned about the
statutory aggravating circumstances found by the
jury. I am aware of nothing in the record to support
the finding that the defendant killed "for the
purpose of preventing his lawful arrest." The fact
that the defendant and his brother wore gloves in
February, and the fact that money and food stamps
were missing (but not found on the defendant),
provide, at the most, scanty support for the
assertion that the killing was committed "for the
purpose of receiving money or [any] other thing of
value."
Id. at 502.
The federal district court in
reviewing the record observed:
Ground L is petitioner's claim
that the trial court improperly submitted to the
jury two aggravating circumstances not supported by
the evidence: (1) that petitioner committed the
murder "for the purpose of receiving money or any
other thing of monetary value," and (2) that the
murder was committed "for the purpose of preventing
a lawful arrest" of petitioner.... The Missouri
Supreme Court rejected this contention on direct
appeal, holding that a reasonable jury could have
found, based on the evidence, that these
circumstances existed. Grubbs, 724 S.W.2d at 500. In
his concurrence, [Justice] Blackmar disagreed with
that holding. Id. at 502. Based on a careful review
of the trial record, this Court makes it own
determination of this question of law, and in so
doing so is in agreement with [Justice] Blackmar....
Grubbs v. Delo, 734 F.Supp. 395,
406 (E.D.Mo.1990) (adopting the passage from Justice
Blackmar's concurrence quoted supra, at 1472).
The federal district court then
ruled that:
The only direct evidence with
respect to the missing money and food stamps was
petitioner's testimony that his brother Randy, who
was also involved in the killing, took them before
leaving the trailer. The evidence suggests that the
gloves were worn so as not to leave incriminating
fingerprints on the knives with which the victim was
cut; the record provides no basis whatsoever for any
connection between the gloves petitioner and his
brother wore at the scene and any preexisting
purpose of pecuniary gain. This negligible evidence
is insufficient to support a finding beyond a
reasonable doubt that petitioner killed the victim
for monetary gain.
Even less support exists in the
record for a reasonable finding that the murder was
designed to prevent petitioner's arrest. The Court
suspects that the evidence that petitioner and his
brother later returned to the scene and set the
trailer on fire in an attempt to conceal the murder
was somehow construed by the jury as evidence of
this aggravating circumstance, but such an inference
is backwards: the fire was set for the purpose of
preventing arrest for the murder, perhaps, but the
murder itself had no apparent purpose of evading
arrest. The Court believes, then, that both of the
challenged aggravating circumstances were
erroneously submitted to the jury.
Id. at 406-07 (footnote and
citation to the record omitted).
The majority conceived a new
scenario, regarding aggravating circumstances, by
piling an inference upon an inference to arrive at a
conclusion that a "rational juror" might find that
defendant and his brother went to the victim's home
to rob him, then later murdered the victim in order
to avoid arrest for the robbery. Supra, at 1469-70.
That theory, it seems to me, hangs by a chimerical
thread, without support in the record or prior
judicial opinions.
This writer need not add to the
perceptive findings of the district court and the
apt observation of Justice Blackmar. I disagree,
however, with any conclusion that the death penalty
would have been imposed, absent these mistaken
conclusions by the jury based upon the improper
submission of aggravating circumstances. Though I do
not dispute a finding that the murder was aggravated
by "outrageously or wantonly vile" circumstances, no
court should invade the jury's province and say that
the jury would have decreed death in this case on
the basis of this single aggravating circumstance.
I would observe that Lewis v.
Jeffers, --- U.S. ----, 110 S.Ct. 3092, 111 L.Ed.2d
606 (1990), cited by the majority, does not change
the analysis, inasmuch as no evidence exists
relating to the aggravating circumstances, here in
question.
Finally, as Justice Blackmar
cogently observed in his concurring opinion:
This case seems to have arisen
out of a drinking session.
The killing was shocking and senseless, but numerous
life sentence cases are reported in which the
ultimate punishment is much more appropriate than in
this case (if, indeed, we must depart from the
practice of nations who follow the western tradition
in exacting the death penalty). The defendant had
numerous convictions, but none for major offenses.
His is an unlikely selection for the death sentence,
when some juries assess it and some do not.
Grubbs, 724 S.W.2d at 502 (footnotes
omitted).
Accordingly, I would grant habeas
relief in this case and require that the State of
Missouri retry the penalty phase of the trial or
reduce the sentence to life imprisonment without the
possibility of parole.
*****
Grubbs also argues that the
following constitute either a violation of due
process or a violation of his right to effective
assistance of counsel: his trial counsel's failure
to seek exclusion of a prospective juror (Meiseman)
for cause; the trial judge's failure to sustain a
motion to strike another prospective juror (Hooper)
for cause; his trial counsel's failure to object to
testimony regarding his post-arrest silence; his
trial counsel's failure to establish a lack of blood
on the carpet; his trial counsel's failure to object
to testimony that there was blood on the carpet; his
trial counsel's failure to present evidence of
certain mitigating circumstances; and his trial
counsel's failure to object to statements in the
prosecutor's closing argument. In addition, Grubbs
argues that an aggravating-circumstance jury
instruction, which asked his sentencing jury to
determine whether the murder "involved torture and
depravity of mind," violates the eighth amendment
and the principle established in Godfrey v. Georgia,
446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).
We have carefully reviewed all of these claims. We
find they are without merit and we adopt the
district court's reasoning.
If we did find an inadequate
procedural bar, we would still have to consider the
state's argument that Grubbs's failure to argue the
double jeopardy issue on post-conviction appeal is
another procedural default, for which there is no
excuse to overcome the procedural bar. Ultimately,
Grubbs's relief must be denied, so we prefer to cut
through the procedural-bar morass and address the
much simpler issue of the merits of Grubbs's claim.
See Long v. Iowa, 920 F.2d 4, 6 n. 2 (8th Cir.1990)
(appellate court may bypass procedural bar and
address simpler issue of merits when relief is
denied).
And Bill Ferrell [the sheriff]
read me my rights and he asked me, he said, "Ricky,"
he said, "Do you want to talk to us; you want to
give us a statement?" I said, "No." I said, "I don't
even want to talk to you." So he said, "Well," he
said, "We know about the death of Jerry Thornton."
He started telling me he knew about me killing Jerry
Thornton. I said, "Well, I don't really even want to
talk to you." I said, "I want a lawyer."
So he kept--Well, Bill Ferrell
told me, he said, "Well," he said, "We know about
the death," like that. But we wasn't up there--We
wasn't up there [the interrogation room] real long,
but we was up there for a little while. Then Bill
Ferrell and Kenny Howell took me back downstairs [jail
cell].
Respondent's Exhibit A, at 63.
Finally, in support for its
conclusion that no basis for the aggravating
circumstances exists, the dissent also quotes
Justice Blackmar's "cogent" observation that "[t]his
case seems to have arisen out of a drinking session."
If this perception by Justice Blackmar is meant to
convey the idea that Thornton and the Grubbs
brothers were drinking together at the time of the
murder, the statement lacks evidentiary support.
There is evidence that all parties had been drinking
at an earlier time. There is no evidence, however,
that Thornton invited Grubbs to his home (in fact,
the evidence suggests just the opposite--that he did
not want Grubbs in his home); and there is no
evidence that either of the Grubbs brothers had ever
before been to Thornton's trailer for a drinking
session or for any other purpose. Grubbs confessed
that he killed Thornton shortly after arriving at
the trailer; and Grubbs confessed that he wore
gloves while committing the crime. There is simply
no substantial evidence to support the dissent's
theory of how the crime occurred and the evidence
which does exist does not provide an explanation
that would override the reasonable inferences that
might have been drawn by the jury to support its
finding of the aggravating circumstances.
If you unanimously decide that a
sufficient mitigating circumstance or circumstances
exist which outweigh the aggravating circumstance or
circumstances found by you to exist, then you must
return a verdict fixing defendant's punishment at
imprisonment for life by the Division of Corrections
without eligibility for probation or parole until he
has served a minimum of fifty years of his sentence.
Respondent's Exhibit B at 136.
The Missouri Supreme Court has ruled that this
instruction does not violate Mills. See State v.
Petary, 790 S.W.2d 243, 245 (Mo.) (en banc), cert.
denied, --- U.S. ----, 111 S.Ct. 443, 112 L.Ed.2d
426 (1990); State v. Smith, 781 S.W.2d 761, 768
(Mo.1989) (en banc), vacated and remanded, --- U.S.
----, 110 S.Ct. 1944, 109 L.Ed.2d 306, aff'd on
remand, 790 S.W.2d 241 (1990). We express no opinion
on the merits of this claim.
Defendant testified that he and
his brother had been drinking when they went to the
trailer. Although they entered the trailer with
Thornton's permission, Thornton, who had been
drinking heavily, told defendant he did not like him
and wanted him to leave.
State v. Grubbs, 724 S.W.2d 494,
496 (Mo.) (en banc), cert. denied,
482 U.S. 931 , 107 S.Ct. 3220, 96 L.Ed.2d 707
(1987).