Chambers v. Bowersox

• Decision Date: 02 December 1998
• Docket Number: No. 97-3067WM,97-3067WM
• Citation: 157 F.3d 560
• Parties: James W. CHAMBERS, Appellant, v. Michael BOWERSOX, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 560

157 F.3d 560

James W. CHAMBERS, Appellant, v. Michael BOWERSOX, Warden, Appellee.

No. 97-3067WM.

United States Court of Appeals Eighth Circuit.

Submitted June 8, 1998.

Decided Sept. 23, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Dec. 2, 1998.

Kent E. Gipson, Kansas City, MO, argued (George M. Winger, Kansas City, MO, on the brief) for Appellant.

Stacy Louise Anderson, Asst.Atty.Gen., Jefferson City, MO, argued for Appellee.

Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit Judges, and PANNER, ¹ District Judge.

RICHARD S. ARNOLD, Circuit Judge.

James Wilson Chambers was convicted of capital murder and sentenced to death for killing Jerry Oestricker. He appeals the District Court's ² denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254 (1994). We have reviewed the claims that have been certified as appealable, and we now affirm.

I.

On May 29, 1982, Chambers and his family, celebrating the Memorial Day week end, were camped near the Meramec River in Arnold, Missouri. Because Chambers's two step-sons wanted to go out onto the river to fish, early that evening Chambers sought to borrow a boat from friends, members of the Turner family. He set out to find the Turners, accompanied by his cousin, Donny Chapman, and Chapman's girlfriend, Eleanor Hotchkiss. After stopping by Chambers's home, the three went to the Country Club Lounge, located on the other side of the river from their campsite. Earlier, at the lounge, one of the Turners, Jack, had gotten into an argument with Jerry Oestricker after Oestricker had walked past Jack and bumped his chair. The owner of the bar was summoned from home, and he asked the Turners and Oestricker to leave. The Turners eventually complied, although Oestricker did not. By the time Chambers arrived, the Turners were gone, and Chambers left the bar without incident.

Chambers, Chapman, and Hotchkiss then went to the Turners' nearby home. There, Chambers asked about borrowing their boat and was told that the boat was dry-docked, but that a neighbor had one that Chambers might be able to borrow. Jack Turner got into the car with Chambers, Chapman, and Hotchkiss, and they returned to the Country Club Lounge to find the neighbor. On the way to the bar, according to Chapman, Turner discussed the earlier incident involving Oestricker. When they arrived at the bar, Chambers and Turner went inside, leaving Chapman and Hotchkiss in the car. Chambers had with him a .38-caliber pistol that he had gotten from his home when he, Chapman, and Hotchkiss first left the campsite. Inside, Chambers approached Oestricker, and asked Oestricker to buy him a drink. Oestricker said he would not, and an argument ensued. The bar owner asked them either to stop arguing or leave, and Chambers walked to the door, saying, "Come on out, you motherfucker. We'll settle this outside." Oestricker then followed Chambers out of the bar.

What happened next is the subject of considerable dispute. According to the State, Chambers fatally shot Oestricker as soon as Oestricker emerged from the bar. A witness testified that Chambers said, "Take that," as he fired the gun at Oestricker. He then repeatedly struck Oestricker on the face with the gun, and, as Oestricker fell, said, "Lay there and die." Chambers then dragged Oestricker out of the doorway and shouted into the bar, "The rest of you motherfuckers want some of this?" Chambers got into the waiting car, and the car drove off. According to the defense theory, once Chambers and Oestricker were outside, they faced each other briefly and exchanged words. Oestricker then struck Chambers, knocking him back into a truck and onto the ground. Oestricker moved toward Chambers, and Chambers shot him in self-defense. The jury accepted the State's version of the facts. No one claims that the evidence was not sufficient to support this verdict.

II.

Three separate juries have found Chambers guilty of capital murder, and he has been sentenced to death after each trial. His first conviction was reversed by the Missouri Supreme Court on the basis of the trial court's refusal to instruct the jury on self-defense. State v. Chambers, 671 S.W.2d 781 (Mo.1984) (en banc). Chambers's second conviction was affirmed by the Missouri Supreme Court in State v. Chambers, 714 S.W.2d 527 (Mo.1986) (en banc). He filed a Mo. Sup.Ct. R. 27.26 postconviction motion, which was denied by the circuit court. The Missouri Court of Appeals affirmed. Chambers v. State, 745 S.W.2d 718 (Mo.App.1987). Chambers then sought habeas relief under 28 U.S.C. § 2254. His petition was denied by the District Court. A panel of this Court reversed that judgment in Chambers v. Armontrout, 885 F.2d 1318 (8th Cir.1989), holding that Chambers's trial counsel provided ineffective assistance when he failed to interview or call a witness who could have testified in support of Chambers's theory of self-defense. The State sought rehearing en banc, which was granted. The full Court agreed with the panel and directed the District Court to enter an order requiring that Chambers be retried or freed. Chambers v. Armontrout, 907 F.2d 825 (8th Cir.1990) (en banc) (6-5 decision), cert. denied, 498 U.S. 950, 111 S.Ct. 369, 112 L.Ed.2d 331 (1990). Chambers was tried and convicted a third time, and again sentenced to death in 1992. He filed a motion for postconviction relief under Mo. Sup.Ct. R. 29.15, and the circuit court denied relief. His conviction, sentence, and the denial of postconviction relief were all affirmed by the Missouri Supreme Court in State v. Chambers, 891 S.W.2d 93 (Mo.1994) (en banc). The petition for writ of habeas corpus before us now was filed in 1995, and amended in 1996. The District Court denied relief in 1997, and thereafter issued a certificate of appealability with respect to six of petitioner's claims.

III.

Chambers's first claim centers on testimony given by his probation officer during the sentencing phase of the third trial. The officer testified that Chambers had told him that one of the regrets of his life was not having had a chance to kill a police officer. According to the probation officer's testimony, the statement came about in the following way. The probation officer visited the Jefferson County jail, where Chambers was being held, shortly after Chambers's first conviction. The officer did not go to the jail to see Chambers, but to see another inmate, in the course of his official duties. The visit took place sometime between December 16 and December 23, 1982. At that point, the probation officer's written presentence investigation report had apparently already been completed and submitted to the trial court. The report was submitted on December 16, and petitioner's formal sentencing took place on December 23. At any rate, during the visit, according to the probation officer's testimony, Chambers called the officer over to his cell and engaged him in conversation. Chambers told the officer that he had some regrets about his life. When the officer asked what they were, Chambers replied that he regretted not having had a chance to kill a police officer. The official presentence investigation report does not mention this statement, but the probation officer did inform the trial judge about it, orally. In addition, the probation officer testified to this statement, without objection from Chambers, during Chambers's second trial. Neither was there any objection to the testimony about the statement during the penalty phase of the third trial.

Chambers now argues that this testimony was inadmissible under Mo.Rev.Stat. § 217.780 (1982), recodified at Mo.Rev.Stat. § 559.125 (1990). ³ This statute provided that:

Information and data obtained by a probation or parole officer shall be privileged information, and shall not be receivable in any court. Such information shall not be disclosed directly or indirectly to anyone other than the members of a parole board and the judge entitled to receive reports, except the court may in its discretion permit the inspection of the report, or parts thereof, by the defendant, or prisoner or his attorney, or other person having proper interests therein, whenever the best interest or welfare of a particular defendant or prisoner makes such action desirable or helpful.

It is important to have in mind the procedural history of Chambers's objections to this testimony. On direct appeal, Chambers argued that the evidence was irrelevant to any aggravating circumstance submitted to the jury, and that it was "inadmissible evidence of bad character and future dangerousness." State v. Chambers, 891 S.W.2d 93, 106-07 (Mo.1994) (en banc). The Missouri Supreme Court reviewed both of these arguments on a plain-error basis, no objection to the testimony having been made at trial. The Court held that no plain error had occurred, because the evidence was admissible. Any evidence regarding the defendant's character is admissible at the penalty phase, including "[c]haracter and future dangerousness evidence...." Id. at 107. In addition, the Court observed that evidence of the statement had been introduced at a previous trial, so that "Chambers was clearly on notice that the State would introduce it." Ibid. The probation-officer statute we have just quoted was not argued to the Missouri Supreme Court, and the Court's opinion does not mention it. In fact, the statute was never cited to any state court until after the present federal habeas corpus proceeding had been commenced. At that point, Chambers filed a motion in the Missouri Supreme Court for recall of that Court's mandate, arguing that his counsel on direct appeal had been ineffective for not contending that the admission of the evidence in question was plain error under the statute. The Missouri Supreme Court denied this motion without comment.

Chambers makes a number of arguments against the admission of this evidence: (1) that admission of the evidence in violation of ...