Blair v. Armontrout

Citation916 F.2d 1310
Decision Date24 September 1990
Docket NumberNos. 86-2375,86-2376,s. 86-2375
PartiesWalter J. BLAIR, Appellant, v. Bill ARMONTROUT, Appellee. Walter J. BLAIR, Appellee, v. Bill ARMONTROUT, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Bernard J. Rhodes, Kansas City, Mo., for appellant.

Jay D. Haden, Kansas City, Mo., for appellee.

Before HEANEY * and FLOYD R. GIBSON, Senior Circuit Judges, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Walter J. Blair, convicted of capital murder and sentenced to death, appeals from the district court's 1 denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 (1989). Blair was convicted of killing Kathy Jo Allen, who was scheduled to testify as the victim in the rape trial of Larry Jackson. Jackson had made offers to pay Blair to kill Allen. On this appeal from denial of the writ, Blair argues that the writ should be granted for the following reasons: (1) the State knowingly used perjured testimony at his trial; (2) the exclusion from pretrial interrogation of an attorney who had represented Blair on an unrelated charge rendered Blair's waiver of his Miranda rights ineffective; (3) the prosecutor's argument during Blair's sentencing violated his eighth amendment rights; (4) the jury in his trial was not given a first-degree murder instruction; and (5) he had not received effective assistance of counsel during this habeas corpus case. On cross-appeal, the State argues that the district court should not have disqualified all attorneys affiliated with the Office of the Attorney General of the State of Missouri. We affirm the district court's denial of Blair's petition and reverse its disqualification order.

Evidence at Blair's trial established the following facts in this case. While incarcerated with Blair in the Jackson County Jail, Larry Jackson, who had been charged with raping Kathy Jo Allen, offered Blair $2,000 to keep Allen from testifying against him. Later, after Blair had been released, Jackson contacted Blair, told him that he wanted Allen killed, and raised his offer to $6,000, which Blair accepted. On August 17, 1979, three days before Allen was scheduled to testify against Jackson in the rape trial, Blair told a friend, Ernest Jones, that he was going to watch the "white girl [Allen]" that evening and that he might "take her out." The following day, Blair told Jones that he had seen the girl and her boyfriend in her apartment the previous evening and that if he had had a gun he could have killed them both. Later that day, between 8:00 p.m. and 9:00 p.m., Blair showed Jones a .32 caliber handgun, which Blair said he had stolen earlier that day. In the early morning hours of August 19, at Ernest Jones' residence, Blair met his girl friend, Sharon Jones, who is not related to Ernest Jones, and together they went to his mother's residence. There, Blair told Sharon Jones that he was "going to kill the white bitch" and that he would return before sunrise.

Blair then left his mother's home and walked to Allen's apartment. He hid across the street from the apartment and watched for suspicious activity. Seeing none, Blair approached the apartment, removed a screen window, and entered Allen's bedroom. At that time, Allen and her boyfriend, Robert Kienzle, were asleep on a mattress in the living room. Blair then covered the lower part of his face with a pillow case he found on Allen's couch. Blair sat and watched the couple until Kienzle awoke at approximately 6:00 a.m. Blair pointed his gun at Kienzle and warned him not to move. Allen, hearing the men talking, then woke up. Blair told the couple that he was just there to rob them and that he would not harm them. Blair saw Kienzle's diamond ring, which Kienzle had attempted to hide under a pillow, and took it along with Kienzle's watch and cash from Kienzle's wallet. Blair told Allen to get dressed so that she could drive him somewhere. Blair refused to take Kienzle's car keys and also refused Kienzle's offer to act as his driver. When Blair was leaving with Allen, he told Kienzle that she would be back within seven to ten minutes. As soon as Blair was gone, Kienzle called the police. Kienzle testified that Allen's abductor wore clothing similar to Blair's clothing as described by Sharon Jones.

At about 6:30 a.m., Velma Moore, who lived on E. 34th Street, heard screams, two gunshots, another scream, and a third shot. At around 7:00 a.m., the police found Allen's body next to her abandoned Volkswagen in a vacant lot at 3406 Tracy Avenue, four blocks from the home of Blair's mother. Allen was found nude from the waist up, had sustained head injuries caused by being struck with a blunt object, and had been shot in the head, chest, and wrist.

Blair arrived, out of breath, at his mother's house at around 7:00 a.m. Sharon Jones was still at the house, and she saw Blair carrying a pillow case. From the pillow case, she saw Blair take a brown purse, a silver diamond ring, two watches, his gun, and his gloves. Later that day, Blair and Sharon Jones went to Ernest Jones' residence. There, Blair passed around a diamond ring, a man's watch, and Allen's driver's license. Blair told Ernest Jones that he had abducted Allen and that "he hit her with a brick and that she wouldn't fall so he shot her." (Tr. V 1484). Blair also said that Jackson's family would pay him when they saw Allen's driver's license. That evening Blair burned the brown purse, the pillow case, and a spent shell casing.

On the day after the murder, Blair and Ernest Jones attempted unsuccessfully to pawn Kienzle's diamond ring. They then gave the ring to Ernest's older brother, Frederick Jones, and he pawned it for $50. Frederick gave the money to Ernest, who in turn gave the money to Blair.

On August 21, Blair contacted the Jackson family and showed them Allen's driver's license. That same day Blair also talked to Larry Jackson by telephone. Jackson told Blair that he loved him like a brother for what he had done, and that Blair would get the $6,000 he had been promised. Later that day, the police found Frederick Jones' name on the pawn ticket for Kienzle's ring and they arrested him. Soon thereafter Ernest Jones was also arrested.

When Blair learned of the arrests, he instructed Ernest Jones' girl friend, Tina Jackson, to have Ernest call a phone number and ask for "Cody." When Tina Jackson was questioned by the police later that day, she gave them the number supplied by Blair. The police determined that the phone number was for an apartment rented by Larry Jackson's sister, Linda Robertson. The Police then went to that apartment, but Linda Robertson told them that Blair was not there, and they then drove to the home of Blair's mother. The police were admitted by Mrs. Blair and during their search they found a hooded sweatshirt similar to the one described by Kienzle as being worn by Allen's abductor. Subsequent analysis of the sweatshirt yielded paint chips consistent with the paint on the outside of Allen's apartment and cat hair consistent with Allen's cat.

On August 22, Ernest Jones, at the behest of the police, called the number Blair had given to Tina Jackson. After a man answered the phone to the code name "Cody," the police entered Linda Robertson's apartment and found Blair with several members of the Jackson family. The police searched the apartment and found a watch similar to Kienzle's near Blair and a .32 caliber pistol in a closet. Later analysis showed that the two expended bullets found in and near Allen's body, as well as the shell casing Blair had attempted to burn, had all been fired by this weapon.

Blair was arrested and was read his Miranda rights at least two times. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Soon thereafter, Blair confessed to abducting and killing Kathy Jo Allen. Blair first confessed orally, then signed a written confession, and finally gave a third confession on videotape. Blair contended in each of these confessions that although he had killed Allen, he had intended only to kidnap her to keep her from testifying against Jackson and that he had accidently shot her when she tried to escape.

Blair was convicted of Allen's murder and sentenced to death. The conviction and death sentence were affirmed on direct appeal. State v. Blair, 638 S.W.2d 739 (Mo.1982) (en banc), cert. denied, 459 U.S. 1188, 103 S.Ct. 838, 74 L.Ed.2d 1030, reh'g denied, 459 U.S. 1229, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983). After certiorari was denied, Blair commenced a post-conviction proceeding in state court under Missouri's Rule 27.26. 2 Relief was subsequently denied and that denial was affirmed by the Missouri Court of Appeals for the Western District. Blair v. State, 683 S.W.2d 269 (Mo.Ct.App.1984) (per curiam). 3

Blair then brought this habeas corpus proceeding under 28 U.S.C. Sec. 2254. He argued that the prosecution: (1) called Ernest Jones as a witness without disclosing that the State had made explicit or implied promises to Jones with respect to charges pending against him in exchange for his testimony; and (2) failed to correct Jones' false testimony concerning the existence of any "deals". Relying on United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), Blair contended that these two factors prejudiced the jury against him and gave Jones an incentive to alter his testimony, thereby rendering Blair's trial fundamentally unfair in violation of the due process clause of the fourteenth amendment.

The district court found that a prosecutor, James Bell, had discussed with Jones and his attorney, Peter Sterling, the possibility of a lenient disposition of Jones' case. Further, the court noted that Sterling told Jones that he would not go to the penitentiary if he testified in Blair's case. Moreover, the court noted that both Bell and Sterling testified that Jones had been informed of a possible plea bargain...

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