Parkus v. Delo

• Decision Date: 26 August 1994
• Docket Number: No. 93-2922,93-2922
• Citation: 33 F.3d 933
• Parties: Steven PARKUS, Appellant, v. Paul K. DELO, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 933

33 F.3d 933

Steven PARKUS, Appellant, v. Paul K. DELO, Appellee.

No. 93-2922.

United States Court of Appeals,

Eighth Circuit.

Submitted March 17, 1994.

Decided Aug. 26, 1994.

Sean D. O'Brien, Kansas City, MO, argued (Marianne Marxkors and J. Steven Erickson, on brief), for appellant.

Stephen D. Hawke, Jefferson City, MO, argued (Ronald L. Jurgeson, on brief), for appellee.

Before FAGG, Circuit Judge, BRIGHT, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

BRIGHT, Senior Circuit Judge.

Steven Parkus, a mentally disturbed man raised in state institutions since age four, killed Mark Steffenhagen by strangulation while both were incarcerated in a Missouri prison. A jury convicted Parkus of first degree murder and sentenced him to death. After exhausting all avenues of relief in the Missouri courts, Parkus petitioned for federal habeas corpus relief, raising twenty separate claims of error. Parkus alleged, among other things, ineffective assistance of trial counsel due to failure to investigate Parkus' mental health history, and that the prosecutor withheld exculpatory or mitigating evidence. The district court denied Parkus' petition without an evidentiary hearing, holding each issue either procedurally barred, unreviewable, or without merit.

On appeal, Parkus raises eleven points of error, some of which we combine for analytical purposes. Parkus contends the district court erred: (I) in rejecting his claim that Missouri's post-conviction procedures failed to afford him due process with respect to his ineffective assistance of counsel and suppressed evidence claims; (II) in denying him an evidentiary hearing on his ineffective assistance of trial counsel and suppressed evidence claims; (III) in rejecting his claim that a comment by the prosecutor in closing argument abridged his right not to testify; (IV) in rejecting his claim that the prosecutor's closing argument injected prejudice into the trial; (V) in rejecting his claims of ineffective assistance of appellate counsel; (VI) in rejecting his claim that venirepersons who admitted they would "be affected" by the possibility of the death penalty in this case were impermissibly excluded from the jury; (VII) in rejecting his claim that a jury instruction impermissibly required jury unanimity before considering mitigating evidence at the sentencing phase; (VIII) in rejecting his claim that one of the court's instructions impermissibly lowered the state's burden of proof by describing "beyond a reasonable doubt" as requiring proof which leaves the jury "firmly convinced" of guilt; and (IX) in rejecting his claim that imposition of the death sentence violates the eighth amendment because the jury did not actually decide that his three prior convictions were serious and assaultive, and because the aggravating circumstances were duplicative.

Based on claim II, we reverse the district court's denial of an evidentiary hearing and remand this case for a hearing on the ineffective assistance of counsel and suppressed evidence issues.

I. BACKGROUND

Steven Parkus suffered physical abuse, sexual abuse and neglect throughout his childhood. At age three, his parents abandoned him to the custody of an alcoholic uncle, who brutalized and sexually abused him. Later, Parkus' natural parents and his uncle refused to have any contact with him. Between the ages of four and seventeen, Parkus lived primarily in state mental health facilities and juvenile detention centers. While psychologists tested and observed Parkus frequently during this period, the record before us indicates that Parkus received various diagnoses throughout childhood. Some records describe Parkus as mentally defective, borderline mentally retarded, borderline psychotic, or schizophrenic. Other medical opinions state his condition less severely, or place more emphasis on Parkus' sociopathic nature. Parkus' IQ generally tested at a little over 70, which indicates borderline mental retardation.

Parkus' adult criminal history began at age sixteen, when he assaulted and choked a female teacher at the Missouri Training School. While awaiting trial for the assault, Parkus escaped from jail and assaulted another woman by choking her. Parkus pleaded guilty to three charges stemming from these incidents, and received a seventeen-year prison sentence.

Evidence suggests that at the Missouri State Penitentiary, the physically small Parkus suffered abuse from other inmates, including rape. About two years into his incarceration, Parkus raped and sodomized a fifty-eight-year-old female teacher in a prison classroom, for which Parkus received two consecutive thirty-year sentences.

On November 24, 1985, Parkus entered the cell of Mark Steffenhagen, another inmate who, because of his small stature, had been subjected to abuse and rape. Parkus tied up Steffenhagen's legs and arms with strips of bedding, then, perhaps while engaging in anal intercourse, choked him to death. Prison records which were not disclosed by the prosecutor before trial indicated that prior to the killing Parkus and Steffenhagen had on one occasion been caught and punished for having consensual sexual intercourse.

Steffenhagen's autopsy revealed facial cuts suggesting he had been struck by a blunt object such as a fist. State v. Parkus, 753 S.W.2d 881, 883-84 (Mo.) (en banc), cert. denied, 488 U.S. 900, 109 S.Ct. 248, 102 L.Ed.2d 237 (1988). In addition, "[b]ruises on the back of his hands, wrist and ankles indicated his arms and legs had been tied and that he had struggled against the bonds. External contusions on the neck as well as internal damage to the larynx demonstrated the cause of Steffenhagen's death was manual strangulation." Id. at 884.

Parkus' trial defense asserted that due to a mental disease or defect he lacked the capacity to "deliberate" upon the crime, deliberation being the mental state required for first degree murder under Missouri law. ¹ In an effort to substantiate the defendant's diminished capacity defense, Parkus' trial counsel, Donald Catlett, sought Parkus' childhood mental health records by contacting officials at Missouri's Division of Youth Services (DYS), which supervised several of Parkus' placements. A DYS official named Herbert Matchett informed Catlett that Parkus' records had been destroyed. Catlett did not further investigate Parkus' mental health records. Through more vigorous pursuit of the records, habeas counsel learned that they had not been destroyed and that the existing records contained diagnoses of Parkus' mental condition ranging from mild mental retardation to childhood schizophrenia.

Parkus did not testify at trial. His brother Chester, also a state prisoner, did testify to the childhood physical and sexual abuse inflicted upon the petitioner by his parents and uncle. In addition, Chester testified that Parkus had frequently suffered sexual abuse while incarcerated.

Psychiatrist A.E. Daniel examined Parkus on behalf of the defense and testified that although Parkus suffered from no mental disease or defect, he did, due to his life experiences, possess diminished mental capacity which prevented him from deliberating upon the murder. Daniel formed this opinion without the unavailable childhood mental health records. These records reflect various diagnoses, including childhood psychosis, schizophrenia and mental retardation. ² Dr. Daniel has now examined these records which were not previously available to him or to the defendant. In an affidavit accompanying Parkus' federal habeas petition, Dr. Daniel states that had he seen Parkus' childhood mental health records before testifying, he would have concluded that Parkus did suffer from a mental disease or defect as defined by Missouri law.

The State's expert, Dr. Jayaratna, interviewed the defendant and ordered a complete neurological exam. Jayaratna testified at trial that Parkus did not have a mental disease or defect and did possess the capacity to deliberate. It was later revealed, however, that the neurological exam ordered by Dr. Jayaratna had never been performed.

Dr. Daniel's current affidavit states that his trial testimony relied in part on the erroneous assumption that Jayaratna had received the neurological report, and that the report came back negative for brain damage. Also present in the petitioner's appendix on appeal are two mental health evaluations requested by habeas counsel: (1) a 1990 evaluation by Dr. William O'Connor which states that Parkus has organic brain damage constituting a mental disease or defect under Mo.Rev.Stat. ch. 552; and (2) a 1992 evaluation performed by Dr. Jonathan Pincus which states that the murder was "unplanned and impulsive", and that Parkus' "inability to control his impulses is the direct result of brain damage." Appellant's App. Vol. III, Tab 23, Exhs. 6-7.

The jury rejected Parkus' "inability to deliberate" defense and convicted him of first degree murder. At the penalty phase, Dr. Daniel reiterated his earlier testimony--that Parkus suffered from no mental disease or defect--but discussed Parkus' borderline mental retardation, low IQ, and history of abuse. Dr. Jayaratna restated his conclusion that Parkus had the capacity to understand and deliberate upon his actions. The jury sentenced Parkus to death, finding as aggravating circumstances Parkus' prior assaultive offenses, his incarceration at the time of the murder, and the victim's inmate status.

On direct appeal, the Missouri Supreme Court affirmed the conviction and sentence. State v. Parkus, 753 S.W.2d 881 (Mo.) (en banc), cert. denied, 488 U.S. 900, 109 S.Ct. 248, 102 L.Ed.2d 237 (1988). Parkus sought post-conviction relief unsuccessfully under Mo.S.Ct.R. 29.15 (1988), and the Missouri Supreme Court again affirmed. Parkus v. State, 781 S.W.2d 545 (Mo.1989) (en banc), cert. denied, 495 U.S. 940, 110 S.Ct. 2194, 109 L.Ed.2d 522 (1990). Parkus did not raise his claim of ineffective assistance of trial counsel for...