United States Court of Appeals
For the Eight Circuit

Summary:

Before sunrise on July 4, Ringo and Quentin Jones hid behind a grease pit in the back of the Ruby Tuesday restaurant in Columbia. Delivery driver Dennis Poyser, 45, arrived and was met by 22 year old manager trainee JoAnna Baysinger. They entered the restaurant. Ringo followed them and shot Poyser in the face, killing him instantly. He then ordered Baysinger to open a safe. After great difficulty, she pulled out $1,400 and gave it to him.

Ringo gave the gun to Jones, who stood with the weapon pointed at Baysinger's head for a minute and a half before pulling the trigger. Interviews with restaurant workers and former workers led police to Ringo. Detectives found a blue ski mask, gun receipt, bulletproof vest and other evidence at the home of Ringo's mother.

Ringo was arrested nine days after the murders in Jeffersonville, Indiana. Jones turned himself in the same day. Jones pleaded guilty to first-degree murder, was sentenced to life imprisonment, and testified against Ringo. Ringo at first denied to police any knowledge of the robbery, then later admitted to the robbery but claimed the shootings were in self-defense. The jury wasn't buying either version.

Citations:

State v. Ringo, 30 S.W.3d 811 (Mo. 2000). (Direct Appeal)
Ringo v. State, 120 S.W.3d 743 (Mo. 2003). (PCR)
Ringo v. Roper, 472 F.3d 1001 (8th Cir. Mo. 2007). (Federal Habeas)
Ringo v. Lombardi, 677 F.3d 793 (8th Cir. Mo. 2012). (Method of Execution)

Final Meal:

Ringo declined to request a last meal, eating instead the Salisbury steak, macaroni and cheese, salad, vegetables, and cake offered to other inmates.

Final Words:

Ringo left behind a note with his final words and a quote from the Quran: "O my Lord bestow wisdom on me, and join me with the righteous"

ClarkProsecutor.org

 

Missouri executes man after appeal over lethal drugs fails

Reuters.com

September 10, 2014

(Reuters) - Missouri executed a convicted murderer on Wednesday after a court turned down his attorney's appeal based on a report that officials had lied over the drugs used in lethal injections. Earl Ringo Jr., who killed two people at a restaurant in 1998, was pronounced dead at 12:31 a.m. Central Time (0531 GMT/1.31 a.m. EDT) at a prison in Bonne Terre, state corrections department spokesman Mike O’Connell said.

Attorney Kay Parish sought a stay of execution, citing a St. Louis Public Radio report that said state officials administered the drug midazolam on every inmate executed since November, in addition to pentobarbital. The use of midazolam is under scrutiny nationwide after inmates in a series of botched executions in Ohio, Oklahoma and Arizona were given the drug and took longer than is typical to die, showing signs of distress. The Missouri Department of Corrections says it administers midazolam before executions and not as part of its execution protocol, and on Tuesday the U.S. Court of Appeals for the Eighth Circuit and the U.S. Supreme Court rejected the appeal.

"It should not be lost in the national debate over the death penalty that Earl Ringo Jr. was responsible for the murders of two innocent Missourians. For 16 years he avoided payment for this crime. Tonight he has paid the penalty," Missouri's Attorney General, Chris Koster, said in a statement. The 40-year-old was the eighth prisoner executed in Missouri in 2014 and the 28th executed in the United States this year, according to the Death Penalty Information Center.

Ringo and an accomplice robbed a Columbia, Missouri restaurant of $1,400 and shot and killed a restaurant manager and a delivery truck driver, according to court documents. "Please do not make this about how executions shouldn’t take place. Put your effort on how we can stop people from committing these terrible actions," said Jama Brown, the widow of one of the victims, Dennis Poyser, in a statement. "Please remember these two wonderful people who just wanted to go to work on the Fourth of July to support their families," she said.

Ringo declined to request a last meal, eating instead the Salisbury steak and macaroni and cheese offered to other inmates, O’Connell said. He quoted from the Koran in his written final statement.

Separately on Tuesday, the federal appeals court heard oral arguments in a long-running lawsuit filed by more than a dozen Missouri death row inmates, including Ringo, challenging the state over its lethal injection protocols. Texas is also due on Wednesday to execute Willie Tyrone Trottie, 45, who killed two people and wounded two others in a shooting spree after breaking up with a girlfriend.

(Reporting by Carey Gillam in Kansas City and Curtis Skinner in San Francisco; Editing by Louise Ireland)

 

Missouri executes man convicted in Columbia, Mo., killings

By Jim Salter - Associated Press - St. Louis Post-Dispatch

September 10, 2014

BONNE TERRE • Missouri early today executed a man convicted in a 1998 robbery and double-murder at a restaurant where he used to work. Earl Ringo Jr. was the eighth person executed in Missouri this year and the 10th since November.

The U.S. Supreme Court refused to halt his execution, a few hours after a three-judge panel of the 8th U.S. Circuit Court of Appeals also refused. Gov. Jay Nixon also denied a clemency petition, saying his decision upholds the court's decision to impose the death penalty for the two murders. Ringo's lawyer had questioned Missouri's use of the sedative midazolam prior to executions, claiming it could dull the inmate's senses, leaving him potentially unable to express any pain.

St. Louis Public Radio reported last week that Missouri used midazolam before each of the last nine executions. Corrections spokesman David Owen said the drug can be administered at the request of the inmate or at the direction of officials with the corrections department. It wasn't clear what circumstances would prompt an inmate to get the sedative if he didn't want it. "The quantity being administered to these guys, that is a very significant amount of the drug and could have a major effect on their ability to think and recall and formulate any kind of thought," Defense attorney Richard Sindel said.

Owen said midazolam "is used to relieve the offender's level of anxiety" and is not part of the actual execution process. Midazolam has come under scrutiny after it was used in problematic executions earlier this year in Ohio, Oklahoma and Arizona. In each case, witnesses said the inmates gasped after their executions began and continued to labor for air before being pronounced dead.

On July 3, 1998, Ringo shared with Quentin Jones his plan to rob the Ruby Tuesday restaurant in Columbia, where he once worked. Jones agreed to join him. Before sunrise on July 4, Ringo and Jones hid behind a grease pit in the back of the restaurant. Delivery driver Dennis Poyser arrived and was met by manager trainee JoAnna Baysinger. They entered the restaurant. Ringo followed them and shot Poyser, 45, killing him instantly. He ordered Baysinger, 22, to open a safe. She pulled out $1,400 and gave it to him. Ringo gave the gun to Jones, who stood with the weapon pointed at Baysinger's head for a minute and a half before pulling the trigger.

Interviews with restaurant workers and former workers led police to Ringo, according to Kevin Crane, who was the Boone County prosecutor at the time. Detectives found a blue ski mask, gun receipt, bulletproof vest and other evidence at the home of Ringo's mother.

Ringo admitted to the robbery but claimed the shootings were in self-defense. He was convicted in 1999 and sentenced to death. Jones, of Louisville, Kentucky, pleaded guilty to first-degree murder and was sentenced to life in prison, but he was spared the death penalty when he agreed to testify against Ringo.

The execution is one of two scheduled for Wednesday in the U.S.; Texas was scheduled to execute Willie Trottie for killing his common-law wife and her brother in 1993. Missouri and Texas use pentobarbital for executions but have declined to disclose where the drug is obtained.

 

Missouri carries out eighth execution this year after rejecting concerns over 'inhumane' sedative

• Earl Ringo Jr executed by lethal injection in the early hours of this morning

• He killed Dennis Poyser and JoAnna Baysinger at a restaurant in 1998

• Last words were from Quran expressing belief and wishes for after death

• Declined to request a last meal, eating instead meal offered to other inmates

• Execution was shrouded in controversy due to use of sedative midazolam

• Controversial drug was used in three botched executions earlier this year

• This afternoon Texas plans to execute Willie Trottie for 1993 killings

By Annabel Grossman for MailOnline

September 10, 2014)

A Missouri inmate was put to death in the early hours of this morning for killing two people during a restaurant robbery in 1998, the eighth execution in the state this year Earl Ringo Jr, 40, was executed at 12:22am by lethal injection after a plea to halt the process - based on irregularities in the use of lethal injection drugs in the state - was refused. Ringo's last words came from the Quran and expressed belief and wishes for after death. He wiggled his feet as the process began, breathed deeply a few times, then closed his eyes, all in a matter of seconds.

Earl Ringo Jr., 40, wiggled his feet as the execution began, breathed deeply a few times, then closed his eyes, all in a matter of seconds. He had declined to request a last meal, eating instead the Salisbury steak and macaroni and cheese offered to other inmates.

In the early hours of July 4, 1998, Ringo and an accomplice killed delivery driver Dennis Poyser and manager trainee JoAnna Baysinger at a Ruby Tuesday restaurant in Columbia. Both victims were shot dead at point-blank range.

The run-up to Ringo's execution was shrouded by controversy, as Missouri continues to use the sedative, midazolam, despite claims that the pre-execution drug is inhumane. Midazolam came under scrutiny after it was used three in botched executions earlier this year in Ohio, Oklahoma and Arizona.

In April, gruesome scenes accompanied the execution of Clayton Lockett, a murderer and rapist who shot his 19-year-old victim and ordered a friend to bury her alive. It was a full 43 minutes after the drug was administered in the Oklahoma execution chamber that the convicted killer died. During this time, Lockett thrashed violently, lurching forward against his restraints, writhing and attempting to speak. Witnesses described his body twisting, and his head reaching up from the gurney, before the curtains were drawn around the chamber obscuring Lockett's final minutes from public view.

In January, convicted murderer and rapist Dennis McGuire appeared to gurgle, gasp for air and convulse for around 10 minutes after being sentenced to death using an experimental two-drug concoction including midazolam. Chilling scenes also occurred in the Arizona execution chamber in July, when Joseph Rudolph Wood took nearly two hours to die from the lethal injection. Witnesses told how the murderer appeared to be struggling to breathe after the sedation and then gasped desperately for breath at least 600 times before falling still.

Ringo's attorneys had argued that the drug could dull his senses and leave him unable to express any pain or suffering during the process. They had asked a federal appeals court to postpone the execution until a hearing over Missouri's use of midazolam.

Attorney Richard Sindel claimed that Missouri's use of midazolam essentially violates its own protocol, which provides for pentobarbital as the lone execution drug. But the courts and Gov. Jay Nixon had refused to halt Ringo's execution over the concerns. The Missouri Department of Corrections says it administers midazolam before executions and not as part of its execution protocol. 'It should not be lost in the national debate over the death penalty that Earl Ringo Jr. was responsible for the murders of two innocent Missourians. For 16 years he avoided payment for this crime. Tonight he has paid the penalty,' Missouri's Attorney General, Chris Koster, said in a statement. A clemency petition to Nixon had also cited concerns about the fact that Ringo was convicted and sentenced to death by an all-white jury.

On July 3, 1998, Ringo told his accomplice Quentin Jones about his plan to rob the Ruby Tuesday restaurant in Columbia, where he once worked. Jones agreed to join him. Before sunrise on July 4, Ringo and Jones hid behind a grease pit in the back of the restaurant. Poyser and Baysinger arrived and entered the restaurant. Ringo followed them and shot Poyser, 45, killing him instantly. He then ordered Baysinger, 22, to open a safe. She pulled out $1,400 and gave it to him. Ringo gave the gun to Jones, who stood with the weapon pointed at Baysinger's head for a minute and a half before pulling the trigger.

Interviews with restaurant workers and former workers led police to Ringo. Detectives found a blue ski mask, gun receipt, bulletproof vest and other evidence at the home of his mother. Ringo admitted to the robbery but claimed the shootings were in self-defense. He was convicted in 1999 and sentenced to death. Jones, of Louisville, Kentucky, pleaded guilty to first-degree murder and was sentenced to life in prison, but he was spared the death penalty when he agreed to testify against Ringo.

Jama Brown, who was married for to Poyser for 24 years, asked that people remember the victims. 'I can only tell you there is not a day that goes by that I don't think of him or wonder what my life would be like today, not only for myself, but for my kids,' she said. In a statement she added: 'Please do not make this about how executions shouldn't take place. Put your effort on how we can stop people from committing these terrible actions. 'Please remember these two wonderful people who just wanted to go to work on the Fourth of July to support their families.'

Ringo's execution is the eighth in the state this year and the tenth since November. St. Louis Public Radio reported last week that Missouri administered midazolam to all nine inmates put to death since November. Corrections department spokesman David Owen said midazolam 'is used to relieve the offender's level of anxiety' and is not part of the actual execution process.

The execution was one of two scheduled for today in the U.S. This afternoon Texas plans to execute Willie Trottie for killing his common-law wife and her brother in 1993. Trottie's execution will be Texas' eighth this year. Florida has performed seven executions in 2014, and all other states have a combined six.

Both Missouri and Texas use pentobarbital as their execution drug but decline to disclose where the drug is obtained. 'They don't tell you what it is and where it comes from,' Trottie told The Associated Press. 'What I've learned in 20 years here on death row is all you can do is say, 'OK.' 'I'm ready whichever way it goes. If God says, 'Yes,' I'm ready.'

Trottie, who turned 45 Monday, shot and killed 24-year-old Barbara Canada, and her 28-year-old brother, Titus, at the Canada family home in Houston. Canada's mother and sister were also wounded. Lawyers for Trottie argued in their appeal that the one-time deliveryman and security guard suffered poor representation in his initial trial. They said his counsel failed to present witnesses who would have told jurors Trottie and Barbara Canada were romantically engaged at the time of the killings. Late Monday, the 5th U.S. Circuit Court of Appeals rejected the appeal.

Trottie said he and Barbara Canada were on 'good terms' despite an on-again, off-again relationship. Trottie said he was defending himself against Titus Canada, who shot first. He said the shooting of his wife was accidental. 'It wasn't like I just walked in there and gunned her down,' he said.

Johnny Sutton, the lead prosecutor at Trottie's trial, said evidence showed that's exactly what happened. 'He hunted them down,' Sutton said. 'The self-defense claim is absolutely ridiculous. He kicked in their door. ... They already were worried about him. He was making threats and trying to run her off the road. 'This one was so cold and calculated.'

 

Earl Ringo Jr.

ProDeathPenalty.Com

On July 3, 1998, Earl Ringo, Jr. and a friend, Quentin Jones, were traveling to Columbia, Missouri, in a rented U-Haul truck. Ringo rented the truck to move his belongings from Columbia to Jeffersonville, Indiana.

During the trip, Ringo concocted a plan to commit an early morning robbery of the Ruby Tuesday restaurant in Columbia where he had formerly been employed. From that employment, Ringo recalled the early morning routine. He explained the two men could wear Ruby Tuesday T-shirts, go to the back door at an early hour, and trick the manager into letting them inside. At that time of day, the manager would be the only person in the building. Ringo believed that the cash proceeds from the previous day's operation would be left in a safe and that their take could amount to several thousand dollars.

On arrival in Columbia, the two went to Ringo's former residence and began packing his possessions in the truck. During the process, Ringo opened a backpack inside the truck, revealing a bulletproof vest and some gloves. He also displayed two ski masks, two Ruby Tuesday T-shirts, and some jeans that Jones could wear to look more like an employee. After loading the truck, Jones went to sleep. However, Ringo did not sleep. He remained awake, cleaning a 9 millimeter pistol.

At about 4:30 a.m. on July 4, Ringo woke Jones. They then drove to a Radio Shack store within walking distance of the restaurant. At that point, Jones expressed reluctance to go inside the restaurant. Ringo responded by chastising Jones, telling him to "Stop being a bitch and come on." The two then walked toward the restaurant, Ringo carrying the backpack. Once there, the men, already wearing the T-shirts supplied by Ringo, approached the restaurant from the rear and walked through an unlocked gateway guarding the back of the restaurant. Ringo closed the gates behind him. Since they had seen no vehicles in the parking lot, they remained within the gated area, waiting for a manager or another employee to arrive. Ringo indicated to Jones that when another employee arrived, they would knock on the back door in the hope of being let inside.

At 5:55 a.m., a delivery truck driven by Dennis Poyser arrived. Jones panicked and attempted to flee by climbing the wall, but Ringo instructed him to hide. Jones complied and located a hiding place between a trash dumpster and a "grease pit." The two put on the ski masks. Next, Joanna Baysinger, a manager in training, opened the rear door of the building, and Poyser opened the outer gates. Baysinger came out to the gateway and spoke with Poyser. Then, Baysinger returned to the building along with Poyser. Carrying his pistol, Ringo ran in after them. Once inside, Ringo shot Poyser in the face from a distance of about six inches. Poyser fell to the floor. Hearing the gunshot, Jones entered the building and found Poyser on the floor and Baysinger screaming. She had blood on her hand and ankle. Then Ringo grabbed Baysinger, forced her into the restaurant office, and demanded that she open the safe. While in the office with Baysinger, Ringo directed Jones to go to the front of the restaurant and make sure no one else had arrived. Jones did so and, seeing no one else, returned to the office. When Jones returned, he found Ringo and Baysinger next to the safe. Ringo filled the backpack with cash from the petty cash and cash drawers located in the top part of the safe as Baysinger tried to open the bottom part containing the cash proceeds from the previous day's business. Ringo told Jones to make certain the back door was closed. Jones closed the door and returned to see Baysinger struggling with the bottom part of the safe while Ringo became increasingly frustrated with her. He demanded that Baysinger "hurry up" as Jones knocked the telephone to the floor in order to scare her. Suddenly, another employee arrived and knocked on the back door. Ringo responded by handing Jones the gun and his right glove. Ringo said, "If she moves, shoot her." He left Jones in charge of controlling Baysinger, and despite the employee knocking on the door, dragged Poyser's body into the walk-in cooler by the legs.

Meanwhile, the employee became discouraged and left the restaurant in order to try calling from a nearby McDonald's restaurant. Baysinger continued having difficulty in opening the lower part of the safe, and finally asked Jones if he would try. Jones refused. Then he became uncomfortable holding the gun used to kill Poyser, so he set it on the floor. Ringo returned to the office, no longer wearing the ski mask, and asked Jones why the gun was on the floor. Jones picked up the gun and handed it back to Ringo, who promptly fired a shot at the floor beside Baysinger to hasten her. Baysinger stood, covered her ears with her hands and screamed. After collecting herself, she again tried unsuccessfully to open the lower portion of the safe. At one point, Ringo also tried.

As before, this final attempt to open the lower part failed, and Ringo gave up. Frustrated, Ringo asked Baysinger how much money she had, seized her purse, and emptied it onto a table. Then, he instructed her to find a piece of paper and write a note saying "I'm sorry." As she wrote, Ringo took Jones aside and asked him if he wanted to kill Baysinger. Jones shrugged his shoulders and shook his head but took the gun from Ringo nevertheless. Baysinger announced she had finished writing the note. Jones pointed the gun at her head and looked at Ringo, who encouraged him to quit stalling and shoot her. Finally, Jones squeezed the trigger, shooting her in the head. Baysinger fell to the floor.

Jones picked up the backpack and placed the gun inside. The two men then left Ruby Tuesday through the front door and walked back to the truck. They fled the scene in the truck, heading east on Interstate Highway 70. Along the way, they disassembled the gun and discarded the parts and the T-shirts at various points. Once in Indiana, they split the $1,400 obtained from the robbery.

Following a police investigation, Ringo was arrested nine days later. Jones turned himself in the same day. Jones pleaded guilty to first-degree murder, second-degree murder, first-degree robbery and armed criminal action. In order to avoid the death penalty, Jones agreed to testify for the state against Ringo. The jury found Ringo guilty of two counts of first-degree murder and recommended that he be sentenced to death for each.

 

State of Missouri vs. Earl Ringo, Jr.

Missouri Supreme Court Cast Number: SC81892

Case Facts:

On July 3, 1998, defendant and a friend, Quentin Jones, were traveling to Columbia, Missouri, in a rented U-Haul truck. Defendant rented the truck to move his belongings from Columbia to Jeffersonville, Indiana.

During the trip, defendant concocted a plan to commit an early morning robbery of the Ruby Tuesday restaurant in Columbia where he had formerly been employed. From that employment, defendant recalled the early morning routine.

He explained the two men could wear Ruby Tuesday T-shirts, go to the back door at an early hour, and trick the manager into letting them inside. At that time of day, the manager would be the only person in the building.

Defendant believed that the cash proceeds from the previous day's operation would be left in a safe and that their take could amount to several thousand dollars.

On arrival in Columbia, the two went to defendant's former residence and began packing his possessions in the truck. During the process, defendant opened a backpack inside the truck, revealing a bulletproof vest and some gloves.

He also displayed two ski masks, two Ruby Tuesday T-shirts, and some jeans that Jones could wear to look more like an employee. After loading the truck, Jones went to sleep. However, defendant did not sleep. He remained awake, cleaning a 9 millimeter pistol.

At about 4:30 a.m. on July 4, defendant woke Jones. They then drove to a Radio Shack store within walking distance of the restaurant. At that point, Jones expressed reluctance to go inside the restaurant. Defendant responded by chastising Jones, telling him to "Stop being a bitch and come on." The two then walked toward the restaurant, defendant carrying the backpack.

Once there, the men, already wearing the T-shirts supplied by defendant, approached the restaurant from the rear and walked through an unlocked gateway guarding the back of the restaurant. Defendant closed the gates behind him.

Since they had seen no vehicles in the parking lot, they remained within the gated area, waiting for a manager or another employee to arrive. Defendant indicated to Jones that when another employee arrived, they would knock on the back door in the hope of being let inside.

At 5:55 a.m., a delivery truck driven by Dennis Poyser arrived. Jones panicked and attempted to flee by climbing the wall, but defendant instructed him to hide. Jones complied and located a hiding place between a trash dumpster and a "grease pit." The two put on the ski masks.

Next, Joanna Baysinger, a manager in training, opened the rear door of the building, and Poyser opened the outer gates. Baysinger came out to the gateway and spoke with Poyser. Then, Baysinger returned to the building along with Poyser. Carrying his pistol, defendant ran in after them.

Once inside, defendant shot Poyser in the face from a distance of about six inches. Poyser fell to the floor. Hearing the gunshot, Jones entered the building and found Poyser on the floor and Baysinger screaming. She had blood on her hand and ankle.

Then defendant grabbed Baysinger, forced her into the restaurant office, and demanded that she open the safe. While in the office with Baysinger, defendant directed Jones to go to the front of the restaurant and make sure no one else had arrived. Jones did so and, seeing no one else, returned to the office.

When Jones returned, he found defendant and Baysinger next to the safe. Defendant filled the backpack with cash from the petty cash and cash drawers located in the top part of the safe as Baysinger tried to open the bottom part containing the cash proceeds from the previous day's business.

Defendant told Jones to make certain the back door was closed. Jones closed the door and returned to see Baysinger struggling with the bottom part of the safe while defendant became increasingly frustrated with her. He demanded that Baysinger "hurry up" as Jones knocked the telephone to the floor in order to scare her.

Suddenly, another employee arrived and knocked on the back door. Defendant responded by handing Jones the gun and his right glove. Defendant said, "If she moves, shoot her."

He left Jones in charge of controlling Baysinger, and despite the employee knocking on the door, dragged Poyser's body into the walk-in cooler by the legs. Meanwhile, the employee became discouraged and left the restaurant in order to try calling from a nearby McDonald's restaurant.

Baysinger continued having difficulty in opening the lower part of the safe, and finally asked Jones if he would try. Jones refused. Then he became uncomfortable holding the gun used to kill Poyser, so he set it on the floor.

Defendant returned to the office, no longer wearing the ski mask, and asked Jones why the gun was on the floor. Jones picked up the gun and handed it back to defendant, who promptly fired a shot at the floor beside Baysinger to hasten her. Baysinger stood, covered her ears with her hands and screamed.

After collecting herself, she again tried unsuccessfully to open the lower portion of the safe. At one point, defendant also tried. As before, this final attempt to open the lower part failed, and defendant gave up.

Frustrated, defendant asked Baysinger how much money she had, seized her purse, and emptied it onto a table. Then, he instructed her to find a piece of paper and write a note saying "I'm sorry." As she wrote, defendant took Jones aside and asked him if he wanted to kill Baysinger. Jones shrugged his shoulders and shook his head but took the gun from defendant nevertheless.

Baysinger announced she had finished writing the note. Jones pointed the gun at her head and looked at defendant, who encouraged him to quit stalling and shoot her. Finally, Jones squeezed the trigger, shooting her in the head. Baysinger fell to the floor. Jones picked up the backpack and placed the gun inside.

The two men then left Ruby Tuesday through the front door and walked back to the truck. They fled the scene in the truck, heading east on Interstate Highway 70.

Along the way, they disassembled the gun and discarded the parts and the T-shirts at various points. Once in Indiana, they split the $1,400 obtained from the robbery. Following a police investigation, defendant was arrested nine days later. Jones turned himself in the same day.

Jones pleaded guilty to first-degree murder, second-degree murder, first-degree robbery and armed criminal action. In order to avoid the death penalty, Jones agreed to testify for the state against defendant. The jury found defendant guilty of two counts of first-degree murder and recommended that he be sentenced to death for each.

 

Case Style: State of Missouri, Respondent, v. Earl Ringo, Jr., Appellant.

Case Number: SC81892

Handdown Date: 10/31/2000

Appeal From: Circuit Court of Boone County, Hon. Ellen Roper

Opinion Summary:

While robbing the Ruby Tuesday restaurant in Columbia in July 1998, Earl Ringo, Jr., shot a delivery person and encouraged his accomplice to shoot the manager in training. Ringo was convicted of two first-degree murders, and the jury recommended death sentences, which the court imposed. He appeals.

AFFIRMED.

Court en banc holds:

1. An African-American potential juror's self-contradictory answers on her ability to judge another person supported the state and court removing her for cause; the strike did not indicate racial motive.

2. When the jury asked how the sentences would be carried out and whether its verdict could be changed, the court responded (with the attorneys' assent) that it could give no further instructions. The court did not err. Where a jury is properly instructed on the law, speculation on the jury's reason for asking will not be a basis for plain error.

3. Claims that Ringo was improperly denied access to grand juror depositions and personally identifiable information about people on the grand juror lists lack merit. Ringo received information and discovery opportunities (jury procedures manual, transcript of part of the proceeding, interrogation of the prosecutor about the proceedings) but failed to take advantage of opportunities to develop a claim of race or gender bias in grand jury selection. In any event, Ringo could not establish systematic exclusion by the disclosure he requested; even if a single panel fails to mirror the community's make-up, systematic exclusion has not been established. Ringo was not tried under the indictment but, rather, by substitute information. Neither statute nor constitution mandate transcribing grand jury proceedings.

4. The state's argument characterizing life in prison as a reward is permissible, as is comparing the strife endured by the defendant with that of the victims' families. In other challenges, the prosecutor made no statement of law or fact not inferable from the evidence.

5. The state's statements about a co-conspirator's plea agreement being for "truthful testimony" did not constitute improper vouching. The state did not imply that the co-conspirator complied with the agreement or that the state independently verified his testimony. Even if mildly vouching, the statements were not so direct and pervasive as to shake confidence in the fairness of Ringo's trial and warrant reversal.

6. The court did not err in submitting the "reasonable doubt" instruction or including the word "encourage" in the accomplice liability verdict director, as repeatedly decided by this Court.

7. The Court again rejects the claim that the statute's aggravators are duplicative and insufficiently narrow the class of offenders subject to the death penalty. Here, ample evidence supports each aggravator.

8. The court properly admitted Ringo's statements to police. Although Ringo was not told that an attorney appeared at the police station for him, Ringo never requested an attorney. The U.S. Supreme Court has stated that events outside and unknown to the defendant cannot bear on his capacity to comprehend and knowingly relinquish a constitutional right. Ringo was informed of his Miranda rights, waived them--in writing, and confessed. The record discloses no coercion. At worst, the court's failure to elaborate its basis for ruling beyond finding the confession voluntary and not coerced is harmless error.

9. The sentence passes the Court's independent statutory review.

Opinion Author: John C. Holstein, Judge

Opinion Vote: AFFIRMED. All concur.

Opinion:

Defendant Earl Ringo, Jr., appeals from two first-degree murder convictions resulting in two death sentences. He raises nine points of error. This Court has exclusive appellate jurisdiction. Mo. Const., art. V, sec. 3. The judgment of the Boone County Circuit Court is affirmed.

This Court reviews the facts in a light most favorable to the jury verdict. State v. Armentrout, 8 S.W.3d 99, 102 (Mo. banc 1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1986 (2000). On July 3, 1998, defendant and a friend, Quentin Jones, were traveling to Columbia, Missouri, in a rented U-Haul truck. Defendant rented the truck to move his belongings from Columbia to Jeffersonville, Indiana. During the trip, defendant concocted a plan to commit an early morning robbery of the Ruby Tuesday restaurant in Columbia where he had formerly been employed. From that employment, defendant recalled the early morning routine. He explained the two men could wear Ruby Tuesday T-shirts, go to the back door at an early hour, and trick the manager into letting them inside. At that time of day, the manager would be the only person in the building. Defendant believed that the cash proceeds from the previous day's operation would be left in a safe and that their take could amount to several thousand dollars.

On arrival in Columbia, the two went to defendant's former residence and began packing his possessions in the truck. During the process, defendant opened a backpack inside the truck, revealing a bulletproof vest and some gloves. He also displayed two ski masks, two Ruby Tuesday T-shirts, and some jeans that Jones could wear to look more like an employee. After loading the truck, Jones went to sleep. However, defendant did not sleep. He remained awake, cleaning a 9 millimeter pistol. At about 4:30 a.m. on July 4, defendant woke Jones. They then drove to a Radio Shack store within walking distance of the restaurant. At that point, Jones expressed reluctance to go inside the restaurant. Defendant responded by chastising Jones, telling him to "Stop being a bitch and come on." The two then walked toward the restaurant, defendant carrying the backpack.

Once there, the men, already wearing the T-shirts supplied by defendant, approached the restaurant from the rear and walked through an unlocked gateway guarding the back of the restaurant. Defendant closed the gates behind him. Since they had seen no vehicles in the parking lot, they remained within the gated area, waiting for a manager or another employee to arrive. Defendant indicated to Jones that when another employee arrived, they would knock on the back door in the hope of being let inside.

At 5:55 a.m., a delivery truck driven by Dennis Poyser arrived. Jones panicked and attempted to flee by climbing the wall, but defendant instructed him to hide. Jones complied and located a hiding place between a trash dumpster and a "grease pit." The two put on the ski masks. Next, Joanna Baysinger, a manager in training, opened the rear door of the building, and Poyser opened the outer gates. Baysinger came out to the gateway and spoke with Poyser. Then, Baysinger returned to the building along with Poyser. Carrying his pistol, defendant ran in after them.

Once inside, defendant shot Poyser in the face from a distance of about six inches. Poyser fell to the floor. Hearing the gunshot, Jones entered the building and found Poyser on the floor and Baysinger screaming. She had blood on her hand and ankle. Then defendant grabbed Baysinger, forced her into the restaurant office, and demanded that she open the safe. While in the office with Baysinger, defendant directed Jones to go to the front of the restaurant and make sure no one else had arrived. Jones did so and, seeing no one else, returned to the office. When Jones returned, he found defendant and Baysinger next to the safe. Defendant filled the backpack with cash from the petty cash and cash drawers located in the top part of the safe as Baysinger tried to open the bottom part containing the cash proceeds from the previous day's business. Defendant told Jones to make certain the back door was closed. Jones closed the door and returned to see Baysinger struggling with the bottom part of the safe while defendant became increasingly frustrated with her. He demanded that Baysinger "hurry up" as Jones knocked the telephone to the floor in order to scare her.

Suddenly, another employee arrived and knocked on the back door. Defendant responded by handing Jones the gun and his right glove. Defendant said, "If she moves, shoot her." He left Jones in charge of controlling Baysinger, and despite the employee knocking on the door, dragged Poyser's body into the walk-in cooler by the legs. Meanwhile, the employee became discouraged and left the restaurant in order to try calling from a nearby McDonald's restaurant.

Baysinger continued having difficulty in opening the lower part of the safe, and finally asked Jones if he would try. Jones refused. Then he became uncomfortable holding the gun used to kill Poyser, so he set it on the floor. Defendant returned to the office, no longer wearing the ski mask, and asked Jones why the gun was on the floor. Jones picked up the gun and handed it back to defendant, who promptly fired a shot at the floor beside Baysinger to hasten her. Baysinger stood, covered her ears with her hands and screamed. After collecting herself, she again tried unsuccessfully to open the lower portion of the safe. At one point, defendant also tried. As before, this final attempt to open the lower part failed, and defendant gave up.

Frustrated, defendant asked Baysinger how much money she had, seized her purse, and emptied it onto a table. Then, he instructed her to find a piece of paper and write a note saying "I'm sorry." As she wrote, defendant took Jones aside and asked him if he wanted to kill Baysinger. Jones shrugged his shoulders and shook his head but took the gun from defendant nevertheless. Baysinger announced she had finished writing the note. Jones pointed the gun at her head and looked at defendant, who encouraged him to quit stalling and shoot her. Finally, Jones squeezed the trigger, shooting her in the head. Baysinger fell to the floor. Jones picked up the backpack and placed the gun inside.

The two men then left Ruby Tuesday through the front door and walked back to the truck. They fled the scene in the truck, heading east on Interstate Highway 70.

Along the way, they disassembled the gun and discarded the parts and the T-shirts at various points. Once in Indiana, they split the $1,400 obtained from the robbery. Following a police investigation, defendant was arrested nine days later. Jones turned himself in the same day.

Jones pleaded guilty to first-degree murder, second-degree murder, first-degree robbery and armed criminal action. In order to avoid the death penalty, Jones agreed to testify for the state against defendant. The jury found defendant guilty of two counts of first-degree murder and recommended that he be sentenced to death for each. The trial court sentenced defendant accordingly, and he now challenges his convictions.

Defendant's first claim of error relates to the decision to strike an African-American venirewoman from the jury for cause. This does not involve a Batson v. Kentucky, 476 U.S. 79 (1986), situation because the woman was not removed pursuant to the state's use of a peremptory strike. Even so, defendant suggests that the for cause strike was racially motivated.

This Court's review of a trial court ruling on a motion to strike for cause is limited to whether there was an abuse of discretion, that is, whether the ruling is clearly against the weight of the evidence and contrary to logic. State v. Jones, 979 S.W.2d 171, 184 (Mo. banc 1998), cert. denied, 525 U.S. 1112 (1999). A trial court maintains broad discretion in evaluating the qualifications of prospective jurors as it is in the ideal position to weigh the venirepersons' responses. Where a venireperson expresses reluctance to give the death penalty, the court may exclude the venireperson when it appears that his or her views will substantially impair the performance of duties as a juror in accordance with the court's instructions and the oath. Id. Finally, when the court in a capital case excuses a venireperson for reasons unrelated to their views on the death penalty, the defendant cannot ordinarily show prejudice. State v. Taylor, 944 S.W.2d 925, 933 (Mo. banc 1997).

During voir dire, venirewoman B. expressed concern that her employer would force her to expend her remaining vacation time in order to serve on the jury. The state claimed this reason sufficient for her to be excused. However, the court observed that Ms. B. is an African-American and expressed reluctance to excuse her unless a greater level of hardship was established. In a lunchtime telephone call, Ms. B. discovered her employer would not dock her vacation time for jury service. When voir dire continued in the afternoon, she revealed the news, indicating she no longer felt job-related stress arising from potential jury duty.

Nevertheless, concern about Ms. B.'s ability to serve resurfaced regarding moral objections to sitting in judgment of another. The record reveals:

STATE: Is there anyone here who, for religious, moral, personal reasons, philosophical reasons, just could not sit in judgment of a fellow human being?

....

Anybody else feel the same way [Ms. W.] does? Or I mean for any other reason? Or [Mr. K.]? Yes, ma'am. [Ms. B.]?

MS. B.: I do also.

STATE: Okay.

MS. B.: I do also.

STATE: All right.

MS. B.: Religious beliefs.

STATE: Understood. So, because of your beliefs, you, again, I got to ask you, you don't want to be part of a jury that does. Because that's what juries do.

MS. B.: Correct.

STATE: Judge a fellow human being.

MS. B.: Correct.

STATE: All right. And you could not do that. Is that correct, ma'am?

MS. B.: Correct.

Later, the trial court returned to this issue, and Ms. B. gave a different response.

THE COURT: Miss [W.], you had said that, because of your personal religious beliefs, that you did not believe that one ought to sit in judgment of another human being. Is that correct?

MS. W.: Right.

THE COURT: And it is because of religious beliefs or just the way you were brought up?

MS. W.: Both.

THE COURT: Both. And I'm not sure that I heard correctly, Ms. B. Did you voice those same opinions?

MS. B.: Yes, I had.

THE COURT: That you did not believe that you could sit in judgment of another individual.

MS. B.: I could.

THE COURT: You are --

MS. B.: But --

THE COURT: You are able to.

MS. B.: Yes, I could.

THE COURT: All right. And you don't have any religious or moral beliefs that would prevent you from making such a decision; is that right?

MS. B.: I could make a judgment -- just conclusion. I think, you know, with everything laid out in front of me, I can make a decision.

THE COURT: In other words, you could consider the evidence and follow the Court's instructions.

MS. B.: Yes.

The state moved to exclude Ms. B. for cause based upon her reluctance to sit in judgment of another. The court sustained the motion. Defendant, however, suggests the record demonstrates Ms. B. was sufficiently rehabilitated by the court to make the court's ruling an abuse of discretion. Additionally, he insists the state's questioning of Ms. B. regarding employment hardship and the state's motion to strike her for that reason, coupled with the state's eventual motion to strike for cause based upon her inability to sit in judgment of another person evinces racial prejudice.

While Batson is not controlling, it is instructive. Once a Batson objection is properly asserted, the state must give a race-neutral reason for a peremptory strike. State v. Nicklasson, 967 S.W.2d 596, 613 (Mo. banc 1998). Here it is clear that the state's reason for requesting the strike was racially neutral. Viewed objectively, Ms. B.'s answers regarding her ability to sit in judgment of another person are self-contradictory. Ms. B. offered dramatically different replies about her ability to judge another human being when questioned by the court than when questioned by the state. Under the circumstances, it cannot be said that either the state's motion or the trial court's ruling on the motion to strike Ms. B. were racially motivated. In the context of this case, the diametrically inconsistent answers given by the venirewoman to nearly identical questions, were a sufficient reason for the trial court to exercise its discretion to sustain the motion.

Next, defendant contends the trial court committed plain error in refusing to answer a jury question about sentencing during the penalty phase deliberation. As he failed to object at trial, this point is not preserved for appeal. The Court's review is limited to plain error. Rule 30.20.

While engaged in penalty phase deliberations, the jury sent a note to the court reading: "If we give death on Count I, and Life without possibilitie [sic] of parole on Count II, How will the counts be carried out? Is there a chance that our Count I verdict will/could be changed.[sic]" After conferring with the state and defense counsel, the judge stated her inclination was simply to inform the jury she could give no further instructions. The note was read into the record, and both the state and defense counsel agreed to the judge's suggestion. At that point, the judge sent a written response to the jury stating, "I can give you no further instructions at this time." The jury returned verdicts recommending a death sentence on both murder counts.

Defendant maintains the jury was attempting to ascertain whether its sentencing recommendation would be insulated from systematic interference. That is, he asserts the jury's sentencing decision was premised upon its uncorrected belief that if it did not sentence him to death on count two, its verdict on count one would be supplanted. Of course, this is mere speculation. Where a jury is properly instructed on the law, mere speculation about the jury's reason for asking a question during its deliberation will not serve as a basis for finding plain error. In this case, the trial court's decision to restrict jury instructions to those already given was not error, plain or otherwise. Taylor, 943 S.W.2d at 680 (declining plain error review of a trial court's decision to refer the jury to its previous instructions when asked about a sentencing issue). As discussed below, it is not evident that the instructions tendered the jury were either insufficient or erroneous.

Before trial, but well after being indicted by the grand jury, defendant requested that he be permitted to depose grand jurors. Nothing in the motion indicates that the purpose of taking the depositions was to determine the general racial makeup of the grand jury. Also sometime after being indicted, defendant requested extensive information regarding the grand jury, including the names and addresses of persons on the grand jury master list and on the grand jury that indicted defendant. In the alternative, he asked the trial court to conduct a review of the jury lists in camera to determine if persons were excluded based on race or gender.

Though his requests for depositions of grand jurors and personally identifiable information about persons on the grand juror lists were denied, defendant was supplied with certain information and opportunities for discovery related to the grand jury selection procedure.

First, defendant was supplied with the jury procedures manual for the Thirteenth Judicial Circuit. The procedures described in the manual culminate with the summoning of a grand jury panel taken from a computer generated, randomly selected master list that is created annually from a merger of the drivers license and voter registration lists of the county.(FN1) The panel is selected proportionally from all seven townships in the county based on the proportionate population of each township. The board of jury commissioners, with the assistance of county data processing personnel, performs these tasks. No information regarding race is collected in this process. Once the panel is summoned to the courthouse, the presiding judge makes inquiry of the panelists to determine if any member of the panel is disqualified, exempt, or suffers a hardship that justifies excuse from grand jury service.

Second, defendant was supplied with a transcript of that portion of the grand jury proceeding, with names redacted, where the presiding judge questioned the panel regarding their ability to serve and gave the grand jury instructions regarding its duties. All questions asked and responses given during the interrogation were race neutral, giving no indication of deliberate exclusion. The transcript also explains the presiding judge's method for selecting the grand jurors. Based on responses to the questions asked, several persons were excused. From the remaining list, the first twelve names were the grand jury and the next five names were the alternates.

Third, the defendant interrogated the prosecutor at length under oath regarding the grand jury proceedings. Though the prosecutor was apparently present during the panel questioning by the presiding judge, defendant failed to ask any questions related to the racial or gender make-up of the grand jury or the racial or gender make-up of the panel from which it was selected. Defendant made no effort to depose the circuit clerk, presiding judge or others present during the grand jury selection process regarding the racial or gender make-up of the grand jury or the panel. Defendant made no claim that the random selection procedures in the manual were not followed.

Unquestionably, the Fourteenth Amendment permits an accused to challenge an indictment by a grand jury that is selected under procedures involving a deliberate or systematic discrimination based on race. Alexander v. Louisiana, 405 U.S. 625, 628 (1972). Though limited discovery of officials involved in the grand jury selection process is permissible to determine if the process resulted in racial or gender exclusion, personally identifiable information such as names and addresses of grand jurors or grand jury master lists is excessively burdensome and is not discoverable. State ex rel. Garrett v. Saitz, 594 S.W.2d 606, 608 (Mo. banc 1980).

Defendant failed to take advantage of discovery and other opportunities to present evidence that were readily available. He could have deposed jury commissioners or data processing personnel to determine whether the random computer selection process was in fact followed in developing the grand jury master list from the drivers license and voter registration lists. If the use of the drivers license and voter registration lists systematically excluded any particular group, he could have offered such evidence. Defendant could have inquired of the prosecutor or others present during grand jury selection to determine if persons appeared to be deliberately excluded based on race or gender rather than for the reasons disclosed in the questioning. Having failed to take advantage of various opportunities to develop a claim of race or gender bias in grand jury selection, the claims that he was improperly denied access to names and addresses of those on the master list and denied depositions of grand jurors are without merit.

Even if defendant had inquired and found that a particular race or gender was underrepresented on the grand jury that ultimately indicted the defendant, that again would not be sufficient to establish a case of systematic discrimination. A single panel that fails to mirror the make-up of the community is insufficient to establish a prima facie case of systematic exclusion. State v. Garrett, 627 S.W.2d 635, 639 (Mo. banc 1982). Ordinarily, an extended period of underrepresentation is required to raise an inference of systematic exclusion. In this case, defendant sought no information regarding the race or gender composition of any previous grand jury or any previous grand jury list. Thus, the claim for improper systematic exclusion could not have been established by the disclosure requested here.

Finally, defendant was not tried under the indictment. Rather, the state filed the substitute information, as provided by sec. 545.300.(FN2) The cases have uniformly held that where a defendant is tried by information substituted for an indictment, the defendant must first challenge the validity of Missouri's practice of permitting a substitute information in lieu of indictment before reaching the question of whether the composition of the grand jury was racially tainted. State v. Johnson, 504 S.W.2d 23, 26-28 (Mo. 1973); State v. Cooksey, 787 S.W.2d 324, 325 (Mo. App. 1990); Cooksey v. Delo, 94 F.3d 1214 (8th Cir. 1996). Here, defendant's only objections to the substitute information were to its timeliness and that it charged a "new offense."(FN3) The objection made to the substitute information was insufficient to raise the validity of the statute permitting the substitution of an information for an indictment. Except as a matter of plain error, that claim may not be raised for the first time on appeal. No plain error is found.

Defendant also requested the grand jury proceedings be transcribed and complains they were not so recorded. Neither statute nor the state constitution mandate that grand jury proceedings be transcribed. State v. Greer, 605 S.W.2d 93, 96 (Mo. 1980), vacated on other grounds, 451 U.S. 1013 (1981). Moreover, sec. 540.105 grants circuit courts the discretion not to transcribe grand jury proceedings. This point is denied.

Defendant's fourth point challenges the trial court's decision to overrule counsel's objections and failure to declare a mistrial sua sponte following alleged prosecutorial misconduct stemming from a lengthy list of allegedly improper arguments. His two preserved claims are addressed. In reviewing these complaints, the Court is mindful of the fact that the trial court enjoys broad discretion in controlling the scope of closing argument. State v. Middleton, 995 S.W.2d 443, 455 (Mo. banc), cert. denied, ___ U.S. ___, 120 S.Ct. 598 (1999). Closing argument will not result in reversal unless the trial court error in overruling the objection was prejudicial. Id. Prejudice is established by showing a reasonable probability that the verdict would have been otherwise had the error not occurred. State v. Deck, 994 S.W.2d 527, 543 (Mo. banc), cert. denied, ___ U.S. ___, 120 S.Ct. 508 (1999). Finally, the state may argue reasonable inferences drawn from the evidence. Middleton, 995 S.W.2d at 455.

Initially, defendant complains about a penalty phase comment where the following transpired:

THE STATE: Ladies and gentlemen, don't reward Earl Ringo --

DEFENSE COUNSEL: Objection. That is improper. That is not what a sentence of life without the possibility of probation or parole is.

THE COURT: The objection is overruled. I don't know what [the prosecutor] is going to say. You may proceed.

THE STATE: Don't reward the defendant for his conduct in this case. He is -- he is not a creature of his past circumstances. Ladies and gentlemen, he is the creator of his current circumstances.

Defendant contends that since the issue to be resolved during the penalty phase of his trial was whether the murders he committed warranted death or life imprisonment without probation or parole, the state inappropriately characterized the more lenient sentence as a reward. However, the scope of permissible argument during the penalty phase of a first-degree murder case is broad. State v. Morrow, 968 S.W.2d 100, 117 (Mo. banc 1998). In this case, it is apparent the state operated within the wide latitude permitted, suggesting defendant's level of culpability is not diluted by a troubled childhood. The trial court did not abuse its discretion in overruling the objection.

The state's argument also compared the relative level of strife endured by defendant with that of the victims' families. After discussing the struggles of the victims' families, the state remarked, "Talk about challenges to face. Nothing that the defense has presented about [defendant's] life is as tough as what they've been through." The defense objected and was overruled by the court. Section 565.030.4 permits trial courts to allow the state to introduce evidence regarding the effect of the murder upon the friends and family of the victim. The rationale of permitting this evidence is to illustrate that "the victims are individuals whose deaths represent a unique loss to society and their family and that the victims are not simply 'faceless strangers.'" State v. Roberts, 948 S.W.2d 577, 604 (Mo. banc 1997) (quoting Payne v. Tennessee, 501 U.S. 808, 825 (1991)). Clearly, the record reveals the state explained the hardships suffered by the victims' families as compared to those borne by defendant. The prosecutor argued from permissible victim impact evidence and did not, as defendant complains, attempt to weigh the relative values of defendant's life compared to others. No abuse of discretion is evident.

Next, defendant refers the Court to six additional closing argument comments made by the state, which were scattered throughout the guilt and penalty phase. He failed to preserve these in his motion for a new trial and, therefore, requests plain error review. Rarely do challenges to guilt phase closing argument merit relief under plain error review. State v. Hall, 982 S.W.2d 675, 683 (Mo. banc 1998), cert. denied, 526 U.S. 1151 (1999). Additionally, plain error review should be used sparingly and does not warrant review of every single trial error unpreserved for review. State v. Silvey, 894 S.W.2d 662, 670 (Mo. banc 1994).

The gist of these complaints is that the state improperly argued (1) that although the defendant was distinguishable from Quentin Jones, that defendant was worse; (2) that Quentin Jones is "[N]ot the brightest guy . . . Not the brightest bulb"; (3) that defendant was a "devious, cool, liar"; (4) that there were a total of nine aggravators when, in fact, there were four aggravators applied to one victim and five to another; (5) that if Quentin Jones had failed to shoot Baysinger, defendant would have; and (6) that "defendant manipulated this whole series of events." In each instance, the prosecutor made no statement of law or fact not inferable from the evidence. Neither individually nor collectively do these arguments rise to the level of plain error so as to constitute manifest injustice. The point is denied.

The fifth point raised by defendant alleges improper vouching by the state for the truthfulness of Jones' testimony. Vouching occurs when a prosecutor implies that he or she has facts establishing the veracity of a state's witness that are not before the jury for their consideration. State v. Wolfe, 13 S.W.3d 248, 256 (Mo. banc), cert. denied, ___ U.S. ___, 2000 WL 723080 (2000). Prior to trial, defendant filed a motion in limine to prevent vouching for witness credibility. The trial court overruled the motion. But not every instance of improper vouching that is now complained of was properly preserved by a timely, specific objection.

Defendant complains of two instances of vouching during voir dire, one while the state conducted direct examination of Jones and a final one during closing argument. Specifically, he contends the state's several references to the truthful testimony Jones agreed to give as part of his plea bargain constituted personal vouching for Jones' veracity.

Two of the statements defendant challenges occurred during voir dire. In the first, the state informed the venire, "One of the witnesses in this case is a guy by the name of Quentin Jones. And he was also charged in connection with this crime at the Ruby Tuesday on July 4th, 1998. I'll tell you now that, in exchange for the truthful testimony . . . ." At that point, defense counsel objected, a conference was held at the bench and voir dire resumed without either the court specifically ruling on the objection or the state making further references to testimony being truthful before that venire panel. The following day, the state remarked before another panel, "One of the witnesses that the state anticipates calling in this case is a guy by the name of Quentin Jones. And he was also charged in connection with these murders. Same circumstances as the defendant in this case, Earl Ringo. And in exchange for the truthful testimony . . . ." As before, defense counsel objected. Another bench conference was held. Despite the court's failure to rule once more, the state agreed not to use the word "truthful" to describe the testimony Jones would offer in exchange for his plea agreement.

The third claim of improper vouching occurred as the state concluded its direct examination of Jones. While asking Jones to identify his signed plea agreement, the prosecutor inquired:

THE STATE: And that is the agreement between yourself and the state. Your attorney also signed it, as well as myself. Correct?

JONES: Yes, sir.

THE STATE: Okay. In a nutshell, the agreement, is that in exchange for your truthful testimony --

DEFENSE COUNSEL: Objection, Your Honor.

The court overruled the objection but reminded the state to take care not to tell the jury Jones' testimony was truthful.

The final claim of improper vouching occurred during the state's closing argument. The prosecutor, in response to a defense argument that the jury should not rely on Jones' bargained-for testimony, stated, "Hey, look where we've come to because of the evil State of Missouri making a deal with [Jones] to tell the truth."

In Wolfe, 13 S.W.3d 248 (Mo. banc), cert. denied, ___ U.S. ___, 2000 WL 723080 (2000), this Court considered a challenge to an immunity agreement the state offered in exchange for truthful testimony. During redirect examination of the state's key witness, the prosecutor offered the agreement into evidence. Id. at 255. Defense counsel objected to introduction of the agreement, as it was for "truthful testimony" and effectively vouched for the witness' veracity. Id. Noting the fact that immunity agreements for testimony, like plea agreements, are double-edged swords, both supporting a witness' credibility and impeaching it, the Court held the agreement for "truthful testimony" not to be improper vouching. Id. at 256-57. Similarly, statements about Jones' plea agreement being for truthful testimony did not constitute improper vouching by the state. Clearly, the agreement itself both demonstrates Jones' incentive to testify truthfully as well as impeaches his credibility by revealing his motivation to manufacture untruthful testimony to avoid the death penalty. Contrary to defendant's claim, this remark did not suggest the prosecutor believed Jones testimony or knew whether it was accurate or not. Also, it did not suggest Jones had already received the benefit of the plea bargain, ostensibly guaranteeing truthful testimony. The existence of Jones' plea bargain presented a potential credibility problem for him as a witness. The state, recognizing that fact and anticipating the defense's inevitable attempt to impeach him, decided as a matter of trial strategy to reveal the existence of the agreement, which was for truthful testimony. Neither error nor vouching is evident.

To support his position, defendant cites United States v. Rudberg, 122 F.3d 1199 (9th Cir. 1997), and United States v. Necoechea, 986 F.2d 1273 (9th Cir. 1993). Defendant claims these two federal cases are analogous to his, indicating reversal due to improper prosecutorial vouching is justified.

Rudberg is distinguishable. In a prosecution for conspiracy to distribute drugs, the prosecutor referenced Rule 35(b) of the Federal Rules of Criminal Procedure permitting a reduction of sentence to reflect a defendant's substantial assistance rendered to the government subsequent to sentencing. Fed. R. Crim. P. 35(b). The prosecutor elicited testimony of the substance of Rule 35(b), indicating that if a witness substantially assisted investigators and that the information he provided turned out to be accurate, the witness gets a reduced sentence. Id. at 1201-02. The prosecutor compounded the problem by mentioning the already reduced sentences of some witnesses, the hope of others to follow suit, and distinguished another who once was refused a sentence reduction for failure to testify completely and truthfully. Id. at 1202-03. Additionally, he invoked the rule at the beginning of his closing argument as he reviewed the parade of witnesses who lined up to testify against the defendant in exchange for more lenient sentences. Id. at 1203-04.

The persistent vouching and resulting implication that the government had already verified the accuracy of several key witnesses present in Rudberg stands in stark contrast to the case at bar. In this case, the state did not imply that Jones had complied with his agreement or that the prosecutor had independently verified the truth of Jones' testimony.

In Necoechea, the Ninth Circuit affirmed the defendant's conviction for conspiracy to possess marijuana with intent to distribute. The court found that a reference to a witness' agreement to testify truthfully mildly implied the witness' testimony to be accurate. Id. at 1281. Even so, the court refused to reverse for plain error. Key in its analysis was a curative instruction commenting on the diminished credibility of a co-conspirator. Id. at 1280. Also important was the fact that the witness' credibility was vigorously attacked by the defense and significant independent circumstantial evidence tied the defendant to the conspiracy. Id. at 1280-81.

Unlike federal courts, Missouri judges generally are not permitted to comment on the credibility of witnesses in their jury instructions. State v. Silvey, 894 S.W.2d 662, 670 (Mo. banc 1995). But here, overwhelming evidence suggested defendant's guilt in this crime, and defense counsel attacked the credibility of Jones. Even if the state's references to the truthful testimony clause in Jones' agreement were found to constitute a mild form of vouching, the references were not sufficiently direct and pervasive to shake confidence in the overall fairness of his trial and warrant reversal. The federal cases do not justify reversal of the basic holding in Wolfe.

In his sixth point, defendant challenges the adequacy of the jury instructions. Initially, he asserts the often-raised argument that two instructions defining "beyond a reasonable doubt" are unconstitutional, diluting the meaning of the otherwise substantial burden. The Court has repeatedly upheld the validity of this instruction. See, e.g., State v. Ervin, 979 S.W.2d 149, 165 (Mo. banc 1998), cert. denied, 525 U.S. 1169 (1999); State v. Griffin, 848 S.W.2d 464, 469 (Mo. banc 1993). There was no error in the submission of these instructions.

As a subargument of his sixth point, defendant incorrectly maintains that the inclusion of the word "encouraged" in the accomplice liability verdict director lowers the state's burden of proof. As no trial objection was made, review is restricted to plain error. This argument is a variation on a theme that has been rejected repeatedly. See, e.g., State v. Clay, 975 S.W.2d 121, 133 (Mo. banc 1998); State v. Copeland, 928 S.W.2d 828, 849 (Mo. banc 1996); State v. Richardson, 923 S.W.2d 301, 316-18 (Mo. banc 1996). Extended discussion of the cases already decided would serve no purpose. It is sufficient to say the claim of error is without merit.

In defendant's seventh point, he alleges trial court error in submitting jury instructions patterned after MAI-CR 3d 313.40 to 313.48. He suggests the aggravating circumstances are duplicative and fail to limit the class of offenders subject to the death penalty, rendering Missouri's death penalty scheme unconstitutional. Furthermore, he adds that the statutory aggravators were not supported by sufficient evidence. Again, this Court has often rejected identical claims that the statutory aggravators are unduly duplicative. See, e.g., State v. Barnett, 980 S.W.2d 297, 309 (Mo. banc 1998), cert. denied, 525 U.S. 1161 (1999); State v. Shafer, 969 S.W.2d 719, 740 (Mo. banc 1998). Similarly, complaints of an insufficiently narrow class of offenders subject to the death penalty have frequently been asserted and rejected. See, e.g., Barnett, 980 S.W.2d at 309; State v. Roll, 942 S.W.2d 370, 378 (Mo. banc 1997). Our law requires that in capital cases, the court shall instruct the jury of any of the statutory aggravating circumstances established by the evidence beyond a reasonable doubt. Sec. 565.032. Under Missouri's death penalty scheme, the potential harm does not exist because the jury does not weigh aggravating circumstances against mitigating circumstances to determine punishment. State v. Brooks, 960 S.W.2d 479, 496-97 (Mo. banc 1997). Defendant relies on two out-of-state cases and one federal appellate court case to question undue duplication of statutory aggravators. The federal case and one of the state cases rely on statutory sentencing frameworks unlike Missouri's.(FN4) The remaining state case is factually unique and contrary to the rationale of our precedent.(FN5) None of these cases justify departure from the well-reasoned precedent of this Court. Thus, it would be of little value to reanalyze the question based upon those cases. It is sufficient here simply to deny the point.

Defendant also challenges the sufficiency of the evidence to support the finding of the aggravators. In his case, the following aggravating circumstances were found: (1) Poyser's murder was committed in the course of another unlawful homicide; (2) Poyser's murder was committed for the purpose of receiving money or something of monetary value; (3) Poyser's murder was committed while the defendant was perpetrating a robbery; (4) Baysinger's murder was committed in the course of another unlawful homicide; (5) Baysinger's murder was committed for the purpose of receiving money or something of monetary value; (6) that the defendant caused or directed another to murder Baysinger; (7) Baysinger's murder was committed to avoid, interfere with or prevent a lawful arrest or custody; and (8) Baysinger's murder was committed while defendant was perpetrating a robbery. Each of these is supported by ample evidence in the record. This claim is denied.

Defendant next argues the trial court abused its discretion in overruling the motion to suppress statements he made to police. He insists the waiver of his Fifth Amendment rights was not sufficiently knowing and intelligent. As in State v. Winfield, 5 S.W.3d 505, 511 (Mo. banc 1999), cert. denied, ___ U.S. ___, 1205 S.Ct. 967 (2000), defendant points first to the trial court's failure to make specific findings regarding the knowing and intelligent nature of his waiver. As defendant failed to preserve this issue, only plain error review may be conducted.

The trial court's ruling provided, "Motion to Suppress Statements is overruled as to statements made by [defendant] on 7/13/98 between 8:30 a.m. and 6 p.m. the Court finding said statements were voluntarily made and not the product of coercion." So long as the record is clear that the trial court made the requisite findings regarding a confession, that is enough. It is not a formal requirement. Winfield, 5 S.W.3d at 511; State v. Knese, 985 S.W.2d 759, 767 (Mo. banc), cert. denied, 526 U.S. 1136 (1999). The only essential condition is that the trial court's conclusions made unmistakably clear the confession was voluntary. Winfield, 5 S.W.3d at 505; State v. Schnick, 819 S.W.2d 330, 336 (Mo. banc 1991). This was done.

To reinforce his argument, defendant cites State v. Bittick, 806 S.W.2d 652 (Mo. banc 1991). That case requires specific findings regarding the knowing, intelligent and voluntary nature of a criminal defendant's waiver of the right to remain silent. As was explained in Winfield, Bittick involved allegations that the defendant was uneducated, intoxicated and suffered from delirium tremens, compromising his ability to offer a knowing and intelligent waiver. Bittick, 806 S.W.2d at 658.

Defendant makes no such claims here, but he submits the detective's failure to inform him of the presence of an attorney at the police station raises sufficient doubt about the knowing and intelligent nature of his waiver to question the trial court's ruling. In this case, defendant's sister contacted an attorney in Jeffersonville and asked him to travel to the police department and inquire as to defendant's desire for counsel. He did so, but police refused to let him meet with defendant. In Moran v. Burbine, 475 U.S. 412 (1986), the United States Supreme Court rejected a claim that police refusal to inform a defendant of an attorney's efforts to reach him affects the constitutionality of a Miranda waiver. The Court announced, "[E]vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right." Id. at 422. It continued to explain that the Constitution does not "require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights." Id. Here, defendant never requested an attorney, and Moran teaches that the failure to inform defendant of an attorney's attempt to speak with him does not render his confession constitutionally infirm.

The evidence indicates defendant was taken to the Jeffersonville, Indiana police station in the morning of July 13. He was given a Miranda form and signed it. During questioning, he continually denied involvement and refused to speculate about who might have committed the murders. He expressed disbelief, stating that "[Ruby Tuesday employees] are all family" and misrepresented that he had not been in Columbia since mid-June. Despite the investigators' attempts to confront him with evidence demonstrating his involvement, defendant denied knowledge of the crimes. Eventually, defendant relented around 5:00 p.m., saying, "Okay. I was in there. I'll tell you all about it." Then, he gave a videotaped statement and confession.

If one is informed of his right to remain silent under Miranda, and understands his right to remain silent under Miranda, and thereafter makes voluntary statements, it is absurd to say that such person has not made a knowing and intelligent waiver of his right to remain silent. State v. Brown, 998 S.W.2d 531, 547 (Mo. banc), cert. denied, ___ U.S. ___, 120 S.Ct. 431 (1999). Defendant was informed of his Miranda rights, waived them, and eventually proceeded to confess to the crimes. Noticeably absent from the record is evidence of coercion. At worst, the trial court's failure to elaborate with specificity the basis for its ruling beyond a finding of voluntariness and absence of coercion is harmless error.

Defendant also argues in his reply brief that this Court should use sec. 565.035 as a vehicle for setting aside the death sentence as a product of racial prejudice that he asserts prevailed throughout the trial. Pursuant to sec. 565.035, the Court independently reviews the defendant's sentences to determine (1) whether they were imposed under the influence of passion, prejudice or any other arbitrary factor; (2) whether there was sufficient evidence to support the finding of a statutory aggravating circumstance and any other circumstance found; and (3) whether the sentences were excessive or disproportionate to the penalty assessed in similar cases. State v. Middleton, 995 S.W.2d 443, 467 (Mo. banc), cert. denied, ___ U.S. ___, 1205 S.Ct. 598 (1999).

The claim of pervasive racial prejudice depends primarily upon defendant's complaints of racial prejudice in voir dire and his claimed difficulty in obtaining data about the grand jury's racial composition. These claims have been considered and rejected. They cannot serve as a basis for finding that the imposition of the death penalty was the product of pervasive racism.

As noted in part VIII, there was sufficient evidence to support each of the aggravating circumstances found by the jury.

A review of the facts illustrates that the two death sentences given defendant are not unduly disproportionate. In conducting proportionality review, the issue is not whether any similar case can be found where the jury imposed a life sentence, but rather whether the death sentence is excessive or disproportionate in light of similar cases. State v. Wolfe, 13 S.W.3d 248, 265 (Mo. banc), cert. denied, ___ U.S. ___, 2000 WL 723080 (2000). Death sentences have been upheld where the defendant murdered multiple victims, acted for pecuniary gain, or where the defendant sought to eliminate possible witnesses. Id. at 265; State v. Worthington, 8 S.W.3d 83, 93 (Mo. banc 1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1978, 146 L.Ed.2d 807 (2000); Middleton, 998 S.W.2d at 531. In defendant's case, two people were killed during the commission of a robbery, eliminating the only eyewitnesses not involved in the crime. Under these facts, the Court concludes the death sentences are proportionate as compared to similar cases in which death has been imposed, taking into consideration the crime, the strength of the evidence, and the defendant's background.

The judgment is affirmed.

All concur.

Footnotes:

FN1. Defendant apparently does not contest that use of voter registration and drivers license lists of a county satisfy the requirement that jurors be selected from a cross-section of the community. The use of each list as a tool to generate a master jury list has been upheld. State v. Hoffman, 895 S.W.2d 108, 112 (Mo. App. 1995) (upholding the use of drivers license records to compile master jury list); State v. Bynum, 680 S.W.2d 156, 160 (Mo. App. 1984) (upholding the use of voter registration records).

FN2. All statutory references are to RSMo 1994.

FN3. The change in the information removed the words "acting in concert" from count I, charging the murder of Dennis Poyser, and moved the charge of murder of Joanna Baysinger from count I to count II. There was no new charge, as asserted in the motion.

FN4. United States v. Farrow, 198 F.3d 179 (6th Cir. 1999); Willie v. State, 585 So.2d 660 (Miss. 1991).

FN5. Engberg v. Meyer, 890 P.2d 70 (Wyo. 1991).

 

Ringo v. State, 120 S.W.3d 743 (Mo. 2003). (PCR)

Defendant was convicted after jury trial in the Circuit Court, Boone County, Ellen Roper, J., of two counts of first-degree murder, resulting in two death sentences. He appealed. The Supreme Court, 30 S.W.3d 811, affirmed. Defendant petitioned for post-conviction relief. The same trial court denied petition, and defendant appealed. The Supreme Court, Ronnie L. White, C.J., held that: (1) defendant failed to raise issue of prosecutorial misconduct; (2) he did not state claim for relief based on underrepresentation of African-Americans in venire; and (3) counsel's decision to call certain witnesses but not others did not constitute ineffective assistance. Affirmed.

RONNIE L. WHITE, Chief Justice.

I.

After granting defense counsel's motion for a change of venue, a jury in Cape Girardeau County convicted Appellant, Earl Ringo, Jr., of two counts of first-degree murder and imposed two death sentences. This Court upheld Appellant's conviction on direct appeal.FN1 Appellant, pro se, moved for post-conviction relief under Rule 29.15 alleging constitutionally ineffective assistance of counsel on fifteen grounds. FN1. State v. Ringo, 30 S.W.3d 811 (Mo. banc 2000).

Appointed counsel filed an amended Rule 29.15 motion raising only five claims. The motion court denied three of the claims without hearing. The first was a claim that trial counsel failed to secure Appellant's right to a fair, representative and impartial jury. The second claim asserted trial counsel failed to object to the trial court's alleged improper response to the jury's question regarding sentencing, and the third was trial counsel's failure to object to alleged prosecutorial misconduct. Motion counsel presented no evidence on the fourth claim alleging the death penalty was unconstitutional, and it too was denied. Finally, the motion court denied relief on the fifth claim alleging that trial counsel failed to present necessary expert testimony in both the guilt and penalty phases of his trial.

Appellant raises four of these five points of error on appeal and adds a fifth claim alleging Eighth and Fourteenth Amendment violations for motion counsel's failure to raise all fifteen points that were originally raised by Appellant in his pro se motion in the amended 29.15 motion.FN2 This Court has jurisdiction pursuant to Mo. Const. art. V, sec. 10; order of June 16, 1988. Affirmed. FN2. This appeal does not raise the constitutionality of the death penalty.

II.

Reviewing points on appeal from the denial of post-conviction relief is limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.FN3 “The findings and conclusions of the motion court ‘are clearly erroneous only if, after review of the entire record, the appellate court is left with the definite impression that a mistake has been made.’ ” FN4 FN3. Rule 29.15(k); State v. Kinder, 942 S.W.2d 313, 333 (Mo. banc 1996). FN4. Ervin v. State, 80 S.W.3d 817, 821 (Mo. banc 2002).

An evidentiary hearing on a Rule 29.15 post-conviction relief motion is only required if: (1) the motion alleges facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the case files and the records; and (3) the matters of which the movant complains have resulted in prejudice.FN5 To obtain an evidentiary hearing for claims related to ineffective assistance of counsel, the movant must allege facts, not refuted by the record, showing that counsel's performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney and that the movant was thereby prejudiced.FN6 “To demonstrate prejudice, Appellant must allege facts showing a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.” FN7 “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” FN8 “An evidentiary hearing may only be denied when the record conclusively shows that the movant is not entitled to relief.” FN9

FN5. Wilkes v. State, 82 S.W.3d 925, 927 (Mo. banc 2002); State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997). FN6. Id. FN7. Id., citing to, Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674, (1984). FN8. Id. FN9. Rule 29.15(h); Wilkes, 82 S.W.3d at 927.

III.

This Court has already resolved the issue surrounding Appellant's newly added claim of ineffective assistance for motion counsel's alleged failure to raise all fifteen points originally raised by Appellant in his pro se motion. The so-called “materially incomplete action” claim does not fall under the limited scope of an abandonment analysis and is not cognizable under an ineffective assistance argument because there is no recognized constitutional right to counsel in a post-conviction proceeding. FN10. Winfield v. State, 93 S.W.3d 732, 738–39 (Mo. banc 2002).

IV.

Appellant claims Fifth, Sixth, Eighth and Fourteenth Amendment violations in association with the three points denied by the motion court without hearing. The trial court had ruled that Appellant was not entitled to a hearing on these issues because the record conclusively showed that he was not entitled to relief.

The first of these three points, trial counsel's alleged failure to object and request appropriate supplemental jury instruction, was raised for plain error and denied on direct appeal.FN11 Appellant is correct that the denial of a plain error claim on direct appeal is not dispositive of the question whether counsel was ineffective in failing to preserve the issue as to which plain error was not found.FN12 However, on direct appeal this Court found no error, plain or otherwise, with the trial court's decision to restrict jury instructions to those already given.FN13 Defense counsel cannot be found to be ineffective for failing to object to the trial court's response to the jury when the response not to supplement the jury instructions was not in error. This point, having already been determined on direct appeal cannot be raised again in a post-conviction relief motion.FN14

FN11. While engaged in penalty phase deliberations, the jury sent a note to the court reading: “If we give death on Count I, and Life without possibilitie [sic] of parole on Count II, How will the counts be carried out? Is there a chance that our Count I verdict will/could be changed. [sic]” After conferring with the state and defense counsel, the judge stated her inclination was simply to inform the jury she could give no further instructions. The note was read into the record, and both the state and defense counsel agreed to the judge's suggestion. At that point, the judge sent a written response to the jury stating, “I can give you no further instructions at this time.” Ringo, 30 S.W.3d at 818.

FN12. Deck v. State, 68 S.W.3d 418, 426–27 (Mo. banc 2002). FN13. Ringo, 30 S.W.3d at 818. FN14. Leisure v. State, 828 S.W.2d 872, 874 (Mo. banc 1992).

Appellant's second point, concerning prosecutorial misconduct, was not raised on direct appeal as the motion court had erroneously determined when it denied a hearing on this issue.FN15 However, even assuming, arguendo, that the prosecutor behaved as alleged, Appellant still failed to meet the standard for requiring an evidentiary hearing because Appellant only offers conclusory statements, not facts, that could demonstrate how these remarks and gestures could have prejudiced the outcome of the trial. “[C]ourts will not draw factual inferences or implications in a Rule 29.15 motion from bare conclusions or from a prayer for relief.” FN16

FN15. Appellant alleged that the prosecuting attorney made various improper comments and gestures during the trial, including rolling his eyes, making hand gestures, whispering loudly at bench conferences, pacing the floor during defense counsel's examination of witnesses, showing autopsy photographs to members of the gallery, and speaking to co-counsel during a defense witness's testimony. FN16. Maynard v. State, 87 S.W.3d 865, 866 (Mo. banc 2002).

Appellant's third point denied without evidentiary hearing contends that defense counsel was ineffective for agreeing to a transfer of venue to Cape Girardeau County, because this county had a history of under-representing African Americans in violation of fair cross-section requirements. Appellant also claims defense counsel was ineffective for failing to object to his petit jury panel, which was allegedly under-represented African–Americans. Appellant claims prejudice because he was tried by an “all-white jury” and “was more likely to be sentenced to death and convicted for the killing of the white victims.” FN17

FN17. Appellant alleged in his amended motion the following facts to support his claim: 1) 4.5 % of the people in Cape Girardeau County were African–American; 2) four out of 163 venirepersons called for appellant's case were African–American; 3) out of 18 selected criminal cases tried by the public defender's office in Cape Girardeau County between 1996–1998 only 16.6% of the “petit jury panels” had adequate representation by African–Americans; 4) appellant's trial counsel were working with counsel appointed in the Terrence Anderson case and knew that Anderson's attorneys were challenging the jury selection process in Cape Girardeau County including raising a “fair cross-section” claim; and 5) no African–Americans were seated on appellant's jury.

“A criminal defendant does have a constitutional right to the unbiased selection of a jury drawn from a cross-section of the community.” FN18 “To establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process.” FN19 “Unless it is shown that the difference between the percentage of the individuals in the identifiable group and those within the venires as a whole is greater than 10%, a prima facie case has not been made.” FN20

FN18. State v. Kinder, 942 S.W.2d at 337. FN19. State v. Hofmann, 895 S.W.2d 108, 111 (Mo.App.1995). FN20. Id.

Appellant failed to demonstrate a competent statistical analysis of the venires in Cape Girardeau County establishing systematic-underrepresentation. Appellant's motion not only failed to examine all of the venires assembled near the time of his trial, but simply selected a few cases tried by the public defender's office that had no statistical correlation or validity. Without alleging facts showing what the venires' makeup was in the appropriate time period, and over time, Appellant cannot show that there was in fact, a history of underrepresentation. Even if his individual panel was underrepresented by the African–American community, “a single panel that fails to mirror the make-up of the community is insufficient to establish a prima facie case of systematic exclusion.” FN21. State v. Ringo, 30 S.W.3d 811, 820 (Mo. banc 2000); State v. Garrett, 627 S.W.2d 635, 639 (Mo. banc 1982).

Appellant's fair cross-section claim is meritless. Trial counsel cannot be found to have been ineffective for failing to object to the transfer of venue and Appellant's petit jury panel, because “[c]ounsel cannot be deemed ineffective for failing to raise a nonmeritorious claim.” FN22. State v. Nunley, 923 S.W.2d 911, 924 (Mo. banc 1996); State v. Six, 805 S.W.2d 159, 171 (Mo. banc 1991).

V.

Finally, Appellant claims Sixth, Eighth and Fourteenth Amendment violations for trial counsel's alleged failure: (1) to adequately investigate and present expert testimony during the guilt phase of the trial establishing diminished mental capacity to deliberate, negating this element of first degree murder; and (2) to adequately investigate and present mitigating evidence during the penalty phase of the trial regarding childhood abuse and Appellant's mental state, which could have resulted in delivery of a life sentence as opposed to the death penalty. Appellant seeks a new trial on the basis of the first claim and/or a new penalty phase on the basis of the second claim. To establish ineffective assistance of counsel, Appellant bears a heavy burden to overcome the strong presumption that counsel provided competent assistance. FN23 Appellant must identify specific acts or omissions of counsel falling below an objective standard of reasonableness, and the “court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance.” FN24

FN23. Middleton v. State, 103 S.W.3d 726, 732 (Mo. banc 2003). FN24. Id.

In terms of an attorney's duty to investigate, an investigation need only be adequate under the circumstances, and “the reasonableness of a decision not to investigate depends upon the strategic choices and information provided by the defendant.” FN25 “When counsel knows generally the facts that support a potential defense, ‘the need for further investigation may be considerably diminished or eliminated altogether.’ ” FN26

FN25. Sanders v. State, 738 S.W.2d 856, 858 (Mo. banc 1987). FN26. Id.

“The selection of witnesses and the introduction of evidence are questions of trial strategy and the mere choice of trial strategy is not a foundation for finding ineffective assistance of counsel.” FN27 To pursue one evidentiary course to the exclusion of another as an informed strategic decision not to offer certain evidence is not ineffective assistance. FN28

FN27. Id. FN28. State v. Simmons, 944 S.W.2d 165, 181 (Mo. banc 1997).

Trial counsel engaged several experts in preparation for trial: Dr. Wanda Draper, a child development expert; Dr. Robert Briggs, a psychologist; and Dr. Wheelock, a learning disorder expert. Counsel also retained the services of a social worker, James Dempsey, to investigate Appellant's background through family interviews.

Dr. Draper outlined the significant life events of Appellant, including childhood abuse. Dr. Briggs determined that Appellant was of normal intelligence, that he had no organic brain damage, that he had a mild to moderate impairment in attention and concentration, and that he tested positive in scores related to Post–Traumatic Stress Disorder (PTSD) on the Minnesota Multiphasic Personality Inventory. No diagnosis of PTSD or of diminished capacity was made, and trial counsel determined that Dr. Briggs' testimony would not reasonably assist them with a defense of diminished capacity. While Dr. Briggs' written report was not provided until sometime later, motion court testimony reveals that defense counsel was informed by Dr. Briggs that it might be prudent for a clinical psychologist to review appellant's personality assessment. FN29. Dr. Briggs's report also definitely states, “I would not recommend retesting this patient from a neuropsychological point of view unless, of course, significant changes warrant further evaluation.”

Appellant seizes upon Dr. Briggs' suggestion regarding further personality assessment as the basis of his contention that counsel was ineffective for not securing additional experts to fully investigate and testify regarding his alleged personality disorder and how it might have affected his ability to deliberate prior to committing the murder. Dr. Robert Smith, an expert retained by post-conviction counsel, subsequently diagnosed appellant with PTSD, and Appellant contends this evidence should have been introduced during the both guilt and penalty phases of the trial. Appellant cites to Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), among other cases, for the proposition that the scope of investigation by trial counsel was unreasonably deficient and constitutionally ineffective.FN30

FN30. Appellant also cites to Catalan v. Cockrell, 315 F.3d 491 (5th Cir.2002); State v. Howard, 805 So.2d 1247, 1257–59 (La.App.2002); State v. Coney, 845 So.2d 120 (Fla.2003); Boyko v. Parke, 259 F.3d 781, 784 (7th Cir.2001); Seidel v. Merkle, 146 F.3d 750, 756 (9th Cir.1998). All of these cases are distinguishable from the present case in terms of the lower level of investigation conducted by defense counsel.

The motion court found that Dr. Smith's expertise would not have assisted in the defense, that sufficient evidence was presented from which a jury could have found a lack of deliberation and convicted Appellant of second degree murder, and that rejection of the lesser conviction did not establish that counsel was ineffective. This Court agrees.

Trial counsel satisfied its duty of investigation, employing four separate experts to examine the various aspects of Appellant's mental and social development. Where trial counsel has, as here, made reasonable efforts to investigate the mental status of defendant and has concluded that there is no basis in pursuing a particular line of defense, counsel should not be held ineffective for not shopping for another expert to testify in a particular way. FN31 Counsel's investigation in this case is in no way comparable to facts in Wiggins where it was held that defense counsel's decision to deny guilt as opposed to introducing mitigating evidence was unreasonable because counsel had essentially “abandoned their investigation of petitioner's background after having acquired only a rudimentary knowledge of his history from a narrow set of sources.” FN32

FN31. State v. Mease, 842 S.W.2d 98, 114 (Mo. banc 1992); State v. Taylor, 929 S.W.2d 209, 225 (Mo. banc 1996); State v. Kenley, 952 S.W.2d 250, 268 (Mo. banc 1997); Lyons v. State 39 S.W.3d 32, 41 (Mo. banc 2001). FN32. Wiggins, 123 S.Ct. at 2536–2539. Defense counsel in Wiggins relied on limited IQ testing, a pre-sentencing investigation, and a Department of Social Services Record completely missing significant events in the defendant's life history. There was also evidence of counsel's inattention to performing a complete investigation as opposed to making reasonable strategic decisions. Id.

Appellant also finds fault with defense counsel's decision not to present the testimony of Dr. Draper regarding his abusive childhood during the penalty phase of the trial. Defense counsel elected to put four members of Appellant's family on the stand during penalty phase. Defense counsel testified at hearing that the decision was made to emphasize the testimony of Appellant's mother, a person experiencing Appellant's abuse first-hand with him, and it was believed that Dr. Draper's testimony may have conflicted with and possibly discredited her testimony. It was a reasonable decision not to admit contradictory testimony, and, as already noted, the decision to pursue one evidentiary course to the exclusion of another as an informed strategic decision is not ineffective assistance.

VI.

The judgment is affirmed. WOLFF, BENTON, LAURA DENVIR STITH, PRICE and LIMBAUGH, JJ., and RAHMEYER, Sp.J., concur. TEITELMAN, J., not participating.

 

Ringo v. Roper, 472 F.3d 1001 (8th Cir. Mo. 2007). (Federal Habeas)

Background: Following affirmance of state conviction for first-degree murder and sentence of death, 30 S.W.3d 811, petition for writ of habeas corpus was filed. The United States District Court for the Western District of Missouri, Richard E. Dorr, J., 2005 WL 2017439, denied the petition and petitioner appealed.

Holdings: The Court of Appeals, Arnold, Circuit Judge, held that: (1) state court determination that counsel did not provide ineffective assistance did not involve unreasonable application of Strickland standard, and (2) denial of discovery request for racial and gender composition of grand jury did not warrant relief. Affirmed.

ARNOLD, Circuit Judge.

Earl Ringo, a prisoner under sentence of death in the State of Missouri, appeals the denial by the district court FN1 of his petition for a writ of habeas corpus, see 28 U.S.C. § 2254. We affirm.

FN1. The Honorable Richard E. Dorr, United States District Judge for the Western District of Missouri.

I.

Eight years ago, Mr. Ringo and Quentin Jones shot a restaurant employee and the driver of a delivery truck to death in the course of a robbery. Mr. Jones pleaded guilty to murder, robbery, and armed criminal action. At Mr. Ringo's trial, the state presented evidence that Mr. Ringo planned the robbery, convinced Mr. Jones to participate, was the triggerman for one of the two murders, and directed the other murder. Mr. Ringo was convicted of two counts of first-degree murder. At the penalty phase of his trial, in an effort to present mitigation evidence, Mr. Ringo's mother, sister, and both grandmothers testified that Mr. Ringo had a troubled childhood. The jury nevertheless recommended a sentence of death on both counts, and the trial court sentenced him accordingly. The Missouri Supreme Court upheld Mr. Ringo's conviction on direct appeal, State v. Ringo, 30 S.W.3d 811 (Mo.2000), cert denied, 532 U.S. 932, 121 S.Ct. 1381, 149 L.Ed.2d 307 (2001) ( Ringo I ).

Mr. Ringo petitioned the trial court for postconviction relief claiming, inter alia, that his trial attorneys were ineffective and that the trial court's refusal to grant discovery regarding the racial and gender composition of his grand jury violated his due process rights. The trial court rejected these claims and the Missouri Supreme Court affirmed. Ringo v. State, 120 S.W.3d 743 (Mo.2003) ( Ringo II ). After exhausting his state remedies, Mr. Ringo filed a petition for relief under § 2254(a). The district court denied the petition but granted Mr. Ringo a certificate of appealability with respect to his two ineffective-assistance-of-counsel claims, and we expanded the certificate to include his discovery claim.

II.

The provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) govern our review. Under AEDPA, we cannot grant a writ of habeas corpus to Mr. Ringo unless the Missouri courts' treatment of his federal claims “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the [United States] Supreme Court.” 28 U.S.C. § 2254(d)(1). A “federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

We consider first Mr. Ringo's two ineffective assistance claims. It is familiar law that a claim of ineffective assistance of counsel requires proof that defense counsel's representation fell below an objective standard of reasonableness and thereby prejudiced the defendant's case. Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1994). To prevail here, Mr. Ringo must do more than “show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance.” Bell v. Cone, 535 U.S. 685, 698–99, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Under AEDPA, he must establish that the state court “applied Strickland to the facts of his case in an objectively unreasonable manner.” Bell, 535 U.S. at 699, 122 S.Ct. 1843.

A.

Mr. Ringo claims that counsel was ineffective in failing to investigate and to present testimony at both the guilt and penalty phases of his trial that he suffered from post-traumatic stress disorder (PTSD). “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

Dr. Robert Smith, a clinical psychologist, diagnosed Mr. Ringo with PTSD after the trial. Mr. Ringo contends that counsel should have discovered that he had PTSD before the trial and presented evidence of the diagnosis. He maintains that this evidence would have supported a diminished capacity defense at the guilt phase of his trial and would also have provided additional mitigation evidence at the penalty phase that would have had a reasonable probability of causing the jury not to recommend a death sentence. The Missouri Supreme Court rejected this argument, holding that Mr. Ringo had not met his burden under Strickland of showing that counsel performed deficiently, Ringo II, 120 S.W.3d at 748–49, and the district court concluded that the state court's holding was reasonable.

Mr. Ringo asserts that counsel had evidence that he had PTSD and failed to investigate this possibility thoroughly. Mr. Ringo points out that before trial counsel asked Dr. Robert Briggs, a neuropsychologist, to perform a mental examination of Mr. Ringo. After examining Mr. Ringo and having him complete a battery of tests, Dr. Briggs gave an oral report of his findings to counsel. (Although Dr. Briggs also prepared a written report, the parties agreed at oral argument that there was no evidence that counsel had that report before trial.)

Based on the testing, Dr. Briggs concluded that Mr. Ringo had normal neuropsychological functioning and intelligence. As part of his investigation, Dr. Briggs administered the standardized Minnesota Multiphasic Personality Inventory (MMPI–2) to Mr. Ringo. The state court found that Dr. Briggs told counsel that Mr. Ringo had “tested positive” on MMPI–2 scores “related to” PTSD and advised that it “might be prudent” for a clinical psychologist to review the MMPI results. See Ringo II, 120 S.W.3d at 748. In his claim, Mr. Ringo argues that counsel was ineffective in not following Dr. Briggs's suggestion and seeking the opinion of a clinical psychologist, particularly as to PTSD.

The Missouri Supreme Court disagreed. The court first concluded that counsel reasonably determined that Dr. Briggs's testimony would not assist them with a diminished capacity defense. Noting that counsel had engaged a child development expert, a psychologist (Dr. Briggs), a learning disabilities expert, and a social worker (who interviewed family members), the state court concluded that counsel had “made reasonable efforts to investigate” Mr. Ringo's mental status. The court then stated that “[w]here trial counsel has, as here, made reasonable efforts to investigate the mental status of defendant and has concluded that there is no basis in pursuing a particular line of defense, counsel should not be held ineffective for not shopping for another expert to testify in a particular way.” Ringo, 120 S.W.3d at 749.

We do not think that counsel must search for an expert until finding one who will render the desired opinion, but we also believe that counsel in a death penalty case generally should obtain an expert opinion on a significant issue that can be addressed only by someone with technical expertise. (Although the district court found that counsel had asked Dr. Briggs for his opinion as to whether Mr. Ringo had PTSD, the state court did not make that finding, and we do not see evidence for that specific request in the record.) As the state court notes, Dr. Briggs did not conclude that Mr. Ringo had PTSD, but he did report that Mr. Ringo had “tested positive” on MMPI–2 scores “related to” PTSD and also suggested that counsel consult a clinical psychologist to evaluate Mr. Ringo's MMPI–2 results.

The Supreme Court has indicated that a failure to investigate based on “inattention, not reasoned strategic judgment” is unreasonable, as is abandoning an “investigation at an unreasonable juncture, making a fully informed decision ... impossible.” Wiggins v. Smith, 539 U.S. 510, 526, 527–28, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). In Wiggins, 539 U.S. at 526–27, 123 S.Ct. 2527, the Court also cautioned the courts not to invoke “strategy” as a “post-hoc rationalization of counsel's conduct, [rather] than an accurate description of their deliberations.” Here the state court did not make specific findings regarding counsel's deliberations, and the only evidence we have located in the record regarding their thinking appears in counsel's testimony at the post-conviction hearing. Mary Ruth O'Neill, Mr. Ringo's counsel in the guilt phase of the trial, testified that by the time she realized that she should consult an expert to determine whether Mr. Ringo had PTSD, she did not think that she had time to do so, and she did not believe that the trial court would grant her a continuance if she had asked for one. (The trial occurred about nine months after Mr. Ringo's arrest and about eleven months after the crime.) Ms. O'Neill testified further that she could not present a diminished-capacity defense without the assistance of an expert. Mr. Ringo's attorney at the penalty phase, Kimberly Shaw, did not think that there was reason to believe that Mr. Ringo had acted with diminished capacity. According to her testimony, Dr. Briggs was hired to provide a neuropsychological examination and determine Mr. Ringo's cognitive abilities. She agreed that Dr. Briggs did not specialize in “mental illnesses per se” and stated that he was “more into physical problems with the brain.” Ms. Shaw observed that although Dr. Briggs might not have been able to assist her as an expert regarding mental diseases or defects, he may have been able to let her know whether certain issues “need[ed] to be looked at.” Ms. Shaw remembered that Dr. Briggs had told her his findings over the phone, but had forgotten many of them and did not recall Dr. Briggs saying that Mr. Ringo had “tested positive” on MMPI–2 scores “related to” PTSD or suggesting that it “might be prudent” for counsel to have a clinical psychologist review the MMPI–2 results.

In Wiggins, 539 U.S. at 527, 123 S.Ct. 2527, the Supreme Court instructed that when determining whether counsel's investigation was adequate, a court must consider whether the evidence that counsel has “would lead a reasonable attorney to investigate further.” Id. In that case, the Court held that counsel's failure to investigate was unreasonable because the information they already had regarding the defendant's background contained leads that needed to be explored before they could make an “informed choice” regarding strategy. Were we reviewing this claim de novo, we believe that a good case could be made that counsel here had a significant “lead that should have been explored,” but “chose to abandon their investigation at an unreasonable juncture.” See id.

First, we note that the suggestion to investigate further came from an expert whom counsel respected and had hired. In addition, we believe that other aspects of this case gave counsel reason to heed Dr. Briggs's suggestion: We think that Dr. Briggs's finding that Mr. Ringo had positive signs of PTSD would be likely to “ring true” to counsel, who knew that Mr. Ringo suffered severe and repeated trauma during his youth. They knew, for example, that his mother's boyfriend had beaten Mr. Ringo in the head with an aluminum baseball bat and prevented him from returning to school for two or three weeks; the defendant was not allowed to seek medical treatment for the injury, and his mother was threatened with death if she told anyone what had happened. We think that the relationship between such experiences and PTSD, a mental impairment caused by trauma, would have been apparent to most attorneys.

We also believe that a reasonable attorney might well have further investigated a possible PTSD diagnosis because of Mr. Ringo's statement to the police and counsel's related trial strategy. Counsel planned to show during the guilt phase of the trial that Mr. Ringo did not deliberate before shooting the driver of the delivery truck; according to Mr. Ringo's statement, he shot the truck driver because he was startled as he entered the back door of the restaurant and the driver charged at him. Trial counsel testified that she was familiar with PTSD, and, in any event, we believe that many attorneys would have known or easily discovered that a PTSD diagnosis could support a challenge to the element of deliberation under the circumstances. We also think that a reasonable lawyer might well have concluded that a PTSD diagnosis could help during the penalty phase; a jury might view a defendant with PTSD as less culpable or give more weight to what the district court described as Mr. Ringo's “horrific childhood” if it resulted in PTSD.

Our belief that a good argument could be made that counsel should have investigated the PTSD diagnosis, however, does not resolve the issue. Regardless of how we might decide the claim in the first instance, our actions are tightly circumscribed by AEDPA. And after carefully reviewing the record and the precedent, we cannot say that Mr. Ringo has shown that the state court “applied Strickland to the facts of his case in an objectively unreasonable manner.” In Strickland, 466 U.S. at 689, 104 S.Ct. 2052, the Supreme Court set out a highly deferential standard for reviewing counsel's conduct, including a presumption of reasonableness. And we note that this is not a case where counsel failed to investigate the defendant's family background or to consult with any mental health professionals. As the state court found, counsel hired Dr. Briggs, a neuropsychologist, who noted positive findings for PTSD but did not make a diagnosis of that condition. Dr. Briggs also reported to counsel that he had not found evidence of a neurological disorder and that he did not think that further testing would be needed. Though Dr. Briggs suggested that counsel consult a clinical psychologist, his recommendation was not a strong one; quite the contrary, it was decidedly mild: Dr. Briggs stated only that it “might be prudent” to obtain a clinical psychologist's opinion. Even if we think that the circumstances of the case warranted heeding Dr. Briggs's advice, we cannot say that the state court unreasonably applied Supreme Court precedent in concluding that counsel was not required to do what Dr. Briggs told them once in a phone call “might be prudent.” We therefore conclude that the Missouri Supreme Court did not unreasonably apply Supreme Court precedent when it determined that counsel was not required to follow Dr. Briggs's suggestion, and we thus deny the claim.

Though we need not decide the issue of prejudice, we think that Mr. Ringo faced significant obstacles in meeting this requirement. We view the burden of showing prejudice here as twofold: First, Mr. Ringo would have to show that it was reasonably probable that if counsel had retained a clinical psychologist, the psychologist would have diagnosed him with PTSD. We note that Mr. Ringo's trial counsel testified at the post-conviction hearing that it was often difficult to hire Dr. Smith because of his busy schedule, Dr. Smith did not testify about whether other psychologists were likely to reach the same conclusion that he did, and the clinical psychologist who testified for the state at the post-conviction hearing (not surprisingly, perhaps) disagreed with Dr. Smith's PTSD diagnosis. If Mr. Ringo overcame this initial burden, he would have to establish that there is a reasonable probability that the PTSD evidence would have altered the outcome of the guilt or penalty phase of the trial. And even if Mr. Ringo met both of these requirements, of course, he would then have to show that the state court's conclusion that he was not prejudiced “involved an unreasonable application of[ ] clearly established Federal law as determined by the Supreme Court,” 28 U.S.C. § 2254(d).

B.

Mr. Ringo also argues that counsel's performance was deficient at the penalty phase because they failed to offer mitigation evidence through the testimony of Dr. Wanda Draper, a childhood development specialist. He contends that Dr. Draper would have testified about the violence and neglect that he suffered during his childhood, matters that might have made the jury less likely to recommend the death penalty in his case. The Missouri Supreme Court rejected this claim, holding that counsel made an “informed strategic decision” not to call Dr. Draper. Ringo II, 120 S.W.3d at 749. The federal district court held that the state court's conclusion was reasonable and thus must be upheld under AEDPA. We agree.

After investigating Mr. Ringo's childhood, counsel hired Dr. Draper and received a report from her. Counsel called Mr. Ringo's mother, sister, and two grandmothers as witnesses during the penalty phase to present mitigating evidence concerning his difficult childhood. Ms. Shaw, the attorney who represented Mr. Ringo in this phase of the trial, testified at the post-conviction hearing that she chose not to call Dr. Draper as a witness because she wanted the emphasis during the penalty phase to be on Mr. Ringo's mother, and counsel was afraid that Dr. Draper's testimony would not “flow” with his mother's testimony. Dr. Draper's report included references to the limited parenting skills of Mr. Ringo's mother, and the Missouri Supreme Court interpreted counsel's testimony as expressing concern that Dr. Draper's testimony might have “conflicted with and possibly discredited” the testimony of Mr. Ringo's mother, who had experienced [the defendant's] abuse “first-hand with him.” The state court concluded that counsel made a reasonable and informed strategic decision not to present Dr. Draper's testimony. Ringo II, 120 S.W.3d at 749.

Although counsel's decision not to call Dr. Draper might appear unwise in hindsight, as we have said, a court's review under Strickland is highly deferential. “[I]t is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Courts instead “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation marks omitted.) Given this deferential standard, as well as the strictures of AEDPA, we conclude that the Missouri Supreme Court's holding that counsel did not act ineffectively was reasonable.

Mr. Ringo argues that our decision in Simmons v. Luebbers, 299 F.3d 929 (8th Cir.2002), is dispositive of this case. In Simmons, we found counsel ineffective for failing to present evidence of the defendant's traumatic childhood at the penalty phase, but in that case counsel did not present any evidence at all of the defendant's background. Id. at 936–40. Here, by contrast, counsel presented considerable evidence of Mr. Ringo's background through the testimony of his family members. Though the evidence was not as detailed as it could have been, the family's testimony addressed the abuse that Mr. Ringo suffered as a child (including the beating with a baseball bat), his family's poverty, and his reaction to his father's death.

Mr. Ringo also maintains that the district court's decision denying relief conflicts with the Supreme Court's decisions in Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), Wiggins, 539 U.S. at 524, 123 S.Ct. 2527, and Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). But in all of these cases counsel were ineffective because they failed to conduct a reasonable investigation. In Rompilla, 125 S.Ct. at 2464, counsel conducted only a belated and cursory examination of an easily-accessible court file regarding the defendant's prior rape conviction despite knowing that the prosecution, in the seeking the death penalty, would rely on that conviction and “would emphasize [the defendant's] violent character” by introducing the rape victim's testimony from the earlier trial. In Wiggins, 539 U.S. at 524–25, 534, 123 S.Ct. 2527, the Court held that counsel should have investigated the defendant's background further based on materials that were in their possession. And in Williams, 529 U.S. at 395, 120 S.Ct. 1495, the Court concluded that counsel were ineffective in failing to conduct an investigation that would have uncovered evidence of the defendant's “nightmarish childhood” because they mistakenly believed that they were barred by law from access to the relevant records. In this case, however, counsel conducted a full investigation into Mr. Ringo's childhood, including each potential mitigating factor that Mr. Ringo contends should have been explored.

Because we believe that the Missouri Supreme Court did not unreasonably apply Strickland when it determined that counsel's decision not to call Dr. Draper fell within the wide range of reasonable professional assistance, we need not consider whether counsel's decision prejudiced Mr. Ringo's case.

III.

Finally, Mr. Ringo maintains that the state trial court erred by denying his discovery request for the racial and gender composition of the grand jury that indicted him. According to Mr. Ringo, the court's denial effectively foreclosed his opportunity to raise a claim that the grand jury pool did not reflect a fair cross-section of the community, as the equal protection clause of the fourteenth amendment requires. See Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977).

The Missouri Supreme Court concluded that Mr. Ringo's claim was procedurally barred because he was not tried pursuant to a grand jury indictment but pursuant to a substitute information and he did not raise a due process challenge to that substitution. Ringo I, 30 S.W.3d at 820. The court further concluded that even if Mr. Ringo's claim was not barred, the trial court's denial of discovery would not warrant relief because the evidence that the defendant sought did not address the makeup of grand juries over an extended period of time and thus could not raise an inference of systematic exclusion. Id. The district court held that this second conclusion was not objectively unreasonable. We agree and thus have no occasion to address the procedural default issue.

To establish a prima facie fair cross-section claim, Mr. Ringo needed to identify “a recognizable, distinct class,” show substantial underrepresentation of that class of persons in jury pools over a “significant period of time,” and prove that the jury selection process is “susceptible of abuse or is not racially neutral.” Castaneda, 430 U.S. at 494, 97 S.Ct. 1272. The diversity of Mr. Ringo's particular grand jury is not relevant to any of these three matters. Even if Mr. Ringo had shown that the particular grand jury that indicted him was not diverse by race or gender, this could not form the basis for a valid constitutional claim. See Cassell v. Texas, 339 U.S. 282, 287, 70 S.Ct. 629, 94 L.Ed. 839 (1950).

Furthermore, Mr. Ringo had other information available to him that was relevant to a Castaneda claim. See Ringo I, 30 S.W.3d at 818–19. In response to Mr. Ringo's discovery requests, the trial court supplied him with a transcript of the questioning of prospective grand jurors and the manual of grand jury selection procedures. The judge also allowed Mr. Ringo's counsel to question the prosecutor, under oath, about grand jury selection procedures. Counsel failed to ask any questions regarding the racial or gender makeup of the grand jury pool despite having the chance to do so.

As the Missouri Supreme Court found, Mr. Ringo also failed to avail himself of numerous alternative sources of evidence that might have been useful in proving systemic discrimination under Castaneda. Ringo I, 30 S.W.3d at 819–20. Mr. Ringo could have deposed the circuit clerk, jury commissioners, or data processing personnel to ask about grand jury selection procedures, but he did not. Id.

IV.

For the reasons stated, we affirm the district court's denial of Mr. Ringo's § 2254 petition.

Ringo v. Lombardi, 677 F.3d 793 (8th Cir. Mo. 2012). (Method of Execution)

Background: Missouri death row inmates brought action against Director of Missouri's Department of Corrections, warden, and others, seeking a declaration that Missouri's lethal injection protocol violated the Controlled Substances Act (CSA) and the Food, Drug and Cosmetic Act (FDCA). The United States District Court for the Western District of Missouri, Nanette K. Laughrey, J., 2011 WL 3584476, granted summary judgment to defendants, and inmates appealed.

Holdings: The Court of Appeals, Riley, Chief Judge, held that: (1) action was moot, and (2) action did not fall within the exception to mootness for claims capable of repetition, yet evading review. Vacated and remanded.