Mercer v. Armontrout

• Citation: 844 F.2d 582
• Decision Date: 13 June 1988
• Docket Number: No. 86-2593,86-2593
• Parties: 25 Fed. R. Evid. Serv. 764 George MERCER, Appellant, v. Bill ARMONTROUT, Warden, Missouri State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 582

844 F.2d 582

25 Fed. R. Evid. Serv. 764

George MERCER, Appellant, v. Bill ARMONTROUT, Warden, Missouri State Penitentiary, Appellee.

No. 86-2593.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 14, 1988.

Decided April 21, 1988.

Rehearing and Rehearing En Banc Denied June 13, 1988.

Douglas S. Laird, Kansas City, Mo., for appellant.

John M. Morris, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before LAY, Chief Judge, McMILLIAN and ARNOLD, Circuit Judges.

LAY, Chief Judge.

George Mercer was found guilty of capital murder under Mo.Rev.Stat. Sec. 565.001 (1978) ¹ and sentenced to death after a five-day jury trial. On appeal the judgment of conviction was affirmed. State v. Mercer, 618 S.W.2d 1 (Mo.), cert. denied, 454 U.S. 933, 102 S.Ct. 432, 70 L.Ed.2d 240 (1981).

Following his conviction, Mercer filed a petition for a writ of habeas corpus in the federal district court. After the matter was remanded to the state for further proceedings, Mercer renewed his petition in the federal district court. ² The district court ultimately denied Mercer's petition for habeas relief. 643 F.Supp. 1021 (1986). Mercer now appeals to this court and seeks habeas relief on three grounds: (1) insufficiency of the evidence showing aggravating circumstances under Missouri law; (2) improper selection of the jury; and (3) admission into evidence of a prior prosecution for rape. We affirm the denial of the issuance of a writ of habeas corpus.

BACKGROUND

The evidence established that George "Tiny" Mercer was drinking with several friends at the Blue Seven Lounge in Grandview, Missouri. Karen Keeton, the decedent, was a waitress at the Blue Seven Lounge and Mercer mentioned to his friends that he'd like to have sexual intercourse with Keeton that evening. One of Mercer's friends, Stephen Gardner, knew Keeton and persuaded her to leave the lounge with him. Later that night, Gardner brought Keeton to Mercer's home. After being raped by Mercer and Gardner, Keeton was forced at gunpoint to perform fellatio on David Gee. Thereafter, Mercer twice asked Steve Gardner what to do with her, and Gardner instructed Mercer both times to kill her. Mercer then straddled Keeton's body and choked her to death with his hands.

After strangling Keeton, Mercer put her body in the back of John Campbell's pickup truck and ordered Campbell to drive. At some point Mercer ordered the truck stopped, dragged Keeton's body out of the truck, and hid it off to the side of the road. As he returned from discarding Keeton's body, Mercer remarked to Campbell that if he had killed "that leaky cunt 17-year-old like I did her * * * I wouldn't've been on any rape charges and things I'm on right now." At the time Mercer was found to have raped and murdered Keeton, Mercer was also being prosecuted for the rape of Debbie Middleton.

I. Agency as an Aggravating Factor

One of the two aggravating factors the jury relied upon in sentencing Mercer to death was "agency," i.e., that Mercer was acting at the direction of Gardner. Mo.Rev.Stat. Sec. 565.012.2(6) (1978). ³ Agency is considered an aggravating factor under Missouri law because such a killing is not done out of passion or rage. A murder committed as another's agent or employee is often motivated solely by money or loyalty. See, State v. Mercer, 618 S.W.2d at 14 (Bardgett, C.J., dissenting) and id. at 18 (Seiler, J., dissenting). Mercer argues that agency was not established. Mercer also argues that because agency was not established one of the two aggravating factors used is now invalid and, therefore, his death sentence must be overturned. ⁴ We disagree.

The jury had before it evidence that Mercer turned twice to Gardner and asked him what to do with Keeton. After Gardner instructed Mercer to murder Keeton, Mercer strangled her. The jury also had before it evidence that Gardner, Gee, and Mercer worked together at Industrial Roofing where Gardner was a foreman. After considering this evidence, the jury found Mercer acted as Gardner's agent. The Missouri Supreme Court affirmed the jury's findings. Id. at 11. This court must presume that the state court's findings are correct. Sumner v. Mata, 455 U.S. 591, 597-98, 102 S.Ct. 1303, 1306-07, 71 L.Ed.2d 480 (1982); 28 U.S.C. Sec. 2254(d) (1982). Furthermore, Mercer has not introduced convincing evidence to establish that the jury's factual determination was clearly erroneous. Rowe v. Lockhart, 736 F.2d 457, 460 (8th Cir.1984).

Mercer now asserts, however, that the brief conversation he had with Gardner is insufficient to establish an agency relationship as a matter of law. Mercer cites no authority for this proposition. Aggravating factors are not constitutionally invalid so long as there is a factual basis for them, and so long as the aggravating factors channel the jury's discretion. Zant v. Stephens, 462 U.S. 862, 876-77, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983). We agree with the district court that the jury permissibly could have found agency. ⁵

While we do not disturb the jury's finding of agency as an aggravating factor, Mo.Rev.Stat. Sec. 565.012.2(6), Mercer's argument on the issue of agency also fails because there remains an unchallenged aggravating factor. As a matter of state law, where at least two aggravating circumstances are found, the failure of one does not mandate reversal or resentencing. Under Missouri law, when a "jury finds two or more aggravating circumstances, 'the failure of one circumstance does not taint the proceedings so as to invalidate the other aggravating circumstance[s] found and the sentence of death thereon.' " State v. Malone, 694 S.W.2d 723, 728 (Mo.1985) (quoting State v. LaRette, 648 S.W.2d 96, 102 (Mo.), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983)), cert. denied, 476 U.S. 1165, 106 S.Ct. 2292, 90 L.Ed.2d 733 (1986); see also State v. Gilmore, 697 S.W.2d 172, 176 (Mo.1985) ("Where two or more statutory aggravating circumstances are found by the jury, failure of one circumstance does not invalidate the other."), cert. denied, 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986). In view of the ample state law authority cited above, the Missouri Supreme Court was justified in holding that the failure of one of two aggravating circumstances does not require reversal. State v. Mercer, 618 S.W.2d at 10 n. 5.

Moreover, in Barclay v. Florida, 463 U.S. 939, 958, 103 S.Ct. 3418, 3429, 77 L.Ed.2d 1134 (1983), the Supreme Court held that, as a matter of constitutional law, improper consideration of an aggravating factor may constitute only harmless error. The Court wrote: "There is no reason why the [state supreme court] cannot examine the balance struck by the trial judge and decide that the elimination of improperly considered aggravating circumstances could not possibly affect the balance." Id.

Likewise, in Zant v. Stephens, 462 U.S. at 891, 103 S.Ct. at 2750, the Court upheld a death sentence even though one of the three aggravating factors was held invalid. The Court observed that imposition of capital punishment is constitutional so long as the aggravating circumstances relied upon genuinely narrow the class eligible for the death penalty. Id. at 877, 103 S.Ct. at 2742. Despite the invalid aggravating circumstances, the jury made an "individualized determination on the basis of the character of the individual and the circumstances of the crime." Id. at 879, 103 S.Ct. at 2744. In addition, the state supreme court reviewed the death sentence and held that it was neither arbitrary, excessive, nor disproportionate. Id. at 879-80, 103 S.Ct. at 2743-44. In the instant case, the Missouri Supreme Court has reviewed the sentence and found that application of the death penalty "was not imposed under the influence of passion, prejudice or any other arbitrary factor." State v. Mercer, 618 S.W.2d at 10. Furthermore, the use of agency as an aggravating factor narrows the class eligible for the death penalty. We agree, therefore, with the district court's decision to leave the finding of agency undisturbed.

II. Jury Selection

A prospective juror who categorically believes that death is never an appropriate penalty can be disqualified for cause because such a juror will not follow the trial court's instructions. Wainwright v. Witt, 469 U.S. 412, 433, 105 S.Ct. 844, 856, 83 L.Ed.2d 841 (1985). While recognizing that jurors who state unequivocally that they are opposed to the death penalty can be removed for cause, Mercer argues that jurors who, due to their religious beliefs, merely equivocate on the issue of their ability to follow the court's instructions cannot be discharged. Witherspoon v. Illinois, 391 U.S. 510, 522-23, 88 S.Ct. 1770, 1776-77, 20 L.Ed.2d 776 (1968). Mercer argues that venire member Bumgarner, who was disqualified for cause, never stated that he would ignore the court's instructions, but rather that he was fundamentally opposed to the death penalty. ⁶

The Supreme Court noted in Witherspoon that a trial court is permitted to strike all jurors who indicate:

(1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today's holding render invalid the conviction, as opposed to the sentence, in this or any other case.

Witherspoon v. Illinois, 391 U.S. at 522-23 n. 21, 88 S.Ct. at 1777 n. 21 (emphasis in original).

The Supreme Court, however, held later that less extreme jurors could also be removed for cause. Wainwright v. Witt, 469 U.S. at 424-26, 105 S.Ct. at 852-53. In Witt, Johnny Paul Witt was sentenced to death for murdering an eleven-year-old boy. The conviction and death sentence were overturned by ...