Newlon v. Armontrout

• Decision Date: 15 November 1989
• Docket Number: No. 88-2385,88-2385
• Citation: 885 F.2d 1328
• Parties: Rayfield NEWLON, Appellee, v. William ARMONTROUT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1328

885 F.2d 1328

Rayfield NEWLON, Appellee, v. William ARMONTROUT, Appellant.

No. 88-2385.

United States Court of Appeals,

Eighth Circuit.

Submitted June 14, 1989.

Decided Sept. 18, 1989.

Rehearing Denied Nov. 15, 1989.

Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, Mo., for appellant.

Richard H. Sindel, Clayton, Mo., for appellee.

Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.

MAGILL, Circuit Judge.

The State of Missouri appeals from the district court's ¹ order granting Rayfield Newlon's 28 U.S.C. Sec. 2254 petition for writ of habeas corpus, vacating Newlon's death sentence, and ordering the State to either resentence Newlon to life imprisonment without parole for fifty years or grant him a new penalty phase trial. See Newlon v. Armontrout, 693 F.Supp. 799 (W.D.Mo.1988). We conclude that the State's arguments alleging error on the part of the district court do not warrant a reversal of the district court's grant of habeas relief. Accordingly, we affirm the district court's order.

I.

On the night of April 24, 1978, Mansfield Dave, the proprietor of a family-owned convenience store in Kinloch, Missouri, was killed while working alone in the store. Although no one witnessed the murder, Dave's wife saw a young man (later identified as Franz Williams) as she was running to the store from the nearby Dave house in response to the alarm. She noted that the young man appeared empty handed. When Mrs. Dave arrived at the convenience store, she found Mr. Dave lying dead behind the counter with two bullet wounds in his upper body--one in the upper left chest and the other in the upper left shoulder. When the police investigated the scene, they found two spent 16-gauge shotgun shells, which police later identified as coming from a sawed-off shotgun that they traced to Walter West's house. Police also found a cold bottle of Nehi orange soda bearing Williams' fingerprints sitting on the counter.

The evidence linked three individuals to Mr. Dave's murder: Franz Williams, Walter West and Rayfield Newlon. Franz Williams was initially charged with capital murder, but pled guilty to felony murder. Walter West pled guilty to second degree murder and received a recommended prison term of ten years in an out-of-state penitentiary in exchange for his testimony at Rayfield Newlon's trial. Rayfield Newlon was tried by a jury, convicted of capital murder and sentenced to death.

An indictment filed August 4, 1978, charged petitioner Newlon with capital murder "in that [Newlon], acting with others, feloniously, unlawfully, willfully, knowingly, and deliberately and with premeditation, killed Mansfield Dave." See Mo.Rev.Stat. Sec. 565.001 (1978). The evidence connecting petitioner with the crime consisted of Walter West's testimony and statements petitioner made to police while he was in custody. ²

At the close of the evidence, instructions, and arguments of counsel, the jury found petitioner guilty of capital murder. Mo.Rev.Stat. Sec. 565.001 (1978). Neither side offered any additional evidence at the penalty phase of the trial, which was held the morning after the jury returned its guilty verdict. Both the prosecutor and petitioner's trial counsel argued during the penalty phase, and the trial court gave additional instructions to the jury, which returned a sentence of death.

The Missouri Supreme Court affirmed Newlon's conviction and sentence on direct appeal. State v. Newlon, 627 S.W.2d 606 (Mo.) (en banc), cert. denied, 459 U.S. 884, 103 S.Ct. 185, 74 L.Ed.2d 149 (1982). After his conviction was affirmed, petitioner filed a motion to vacate his sentence pursuant to Missouri Supreme Court Rule 27.26. ³ After an evidentiary hearing at which petitioner presented additional evidence, a St. Louis County circuit court denied Newlon's 27.26 motion. The Missouri Court of Appeals affirmed the denial of the 27.26 motion and denied a request for a rehearing or transfer to the Missouri Supreme Court. Newlon v. State, 705 S.W.2d 590 (Mo.App.1986).

Having exhausted his available state remedies, Newlon commenced the present action for federal habeas corpus relief in federal district court, challenging the imposition of the death penalty. Newlon advanced the claims that: (1) he was denied due process of law due to the improper nature of the prosecutor's penalty phase argument, which was not only inflammatory and prejudicial, but also diminished the jury's sense of responsibility in imposing the death penalty; (2) he was denied his right to effective assistance of counsel during the penalty phase of the trial; (3) the trial court unconstitutionally limited the factors the jury could consider in mitigation of the death penalty; and (4) Missouri's "depravity of mind" instruction on aggravating circumstances was unconstitutionally vague.

The district court, after an additional hearing, found a constitutional violation in each instance advanced by Newlon and granted the writ. ⁴ The district court opinion addressed each of Newlon's claims on its merits. In an order dated June 2, 1988, the district court directed that Newlon be given a new penalty phase trial or, in the event that the State chose not to give Newlon a new trial, that he be relieved of the sentence of death and imprisoned for life with no opportunity of parole for fifty years. Newlon v. Armontrout, 693 F.Supp. 799 (W.D.Mo.1988).

For reversal, the State of Missouri argues that the district court erred in finding Missouri's aggravating circumstance instruction vague because the Missouri Supreme Court has defined "depravity of mind" in such a way as to narrow the sentencer's discretion. The State also contends that the prosecutor's penalty phase closing argument was proper and not prejudicial because there is no reasonable probability that it affected the outcome of the penalty phase. We address each of these arguments in turn. ⁵

II.

The verdict form returned by the jury when they imposed the death penalty indicated only that the jury found "Aggravating Circumstance No. 2" in "Instruction No. 19." Instruction No. 19 required the jury to find one of two aggravating circumstances before returning a verdict of death:

1. Whether the Defendant murdered Mansfield Dave for the purpose of receiving money or any other thing of monetary value.

2. Whether the murder of Mansfield Dave involved depravity of mind and that as a result thereof it was outrageously or wantonly horrible or inhuman.

The instruction was based on Mo.Rev.Stat. Sec. 565.012.2(7) (1978), which provides for a statutory aggravating circumstance if the "offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind." ⁶ Because the death sentence would fail if the single aggravating circumstance was invalid, the district court focused on the validity of the phrase "depravity of mind." The district court found that "[a]bsent a clear, limiting directive, the words 'depravity of mind' in this case are not capable of objective determination." 693 F.Supp. at 812-13. The court relied on standards set forth in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (plurality opinion), and that case's progeny in holding the instruction unconstitutionally vague. 693 F.Supp. at 813.

On appeal, the State claims that the district court erred in finding the "depravity of mind" instruction unconstitutionally vague. The State submits that the instruction adequately channeled the jury's discretion in considering the death penalty because the Missouri Supreme Court construes "depravity of mind" narrowly. In response, Newlon focuses on the trial court's failure to define "depravity of mind" for the jury, alleging that the jury was not given adequate information and guidance from clear and objective standards to decide the existence of aggravating circumstances. Newlon also takes issue with the State's claim that the Missouri Supreme Court has defined the scope of the phrase "depravity of mind."

A.

Before we address the constitutionality of the "depravity of mind" instruction, we must consider as a threshold issue whether the rule adopted by the district court and urged on us by Newlon is a "new rule" for purposes of retroactivity. Teague v. Lane, --- U.S. ----, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion by Justice O'Connor, with Chief Justice Rehnquist, Justice Scalia and Justice Kennedy joining in the opinion, and Justices Stevens and Blackmun concurring in the judgment) (requiring courts to determine retroactivity as threshold matter in cases on collateral review); see Penry v. Lynaugh, --- U.S. ----, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Bruner v. Perini, 875 F.2d 531 (6th Cir.1989). Under Teague, we cannot "announce a new rule in a given case unless the rule would be applied retroactively to the defendant in the case and to all others similarly situated." 109 S.Ct. at 1078. The Teague plurality adopted a new retroactivity approach which precludes us from announcing or applying a new constitutional rule of criminal procedure in a case on collateral review unless the case falls within one of two exceptions. Id. 109 S.Ct. at 1075, 1078.

Teague involved the appeal of a district court's denial of a writ of habeas corpus. The petitioner challenged his conviction on the ground that the prosecutor had used all of his peremptory challenges to exclude blacks from the jury, resulting in an all-white jury. The petitioner argued that the equal protection clause of the fourteenth amendment and the fair cross-section requirement of the sixth amendment prohibited the exclusion of petit jurors on the basis of race. The Court rejected the petitioner's equal protection claim, based on Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (per curiam), because petitioner's conviction became final before Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), was decided. The Court...